Content Warning:
This podcast episode contains mature language and may not be suitable for all audiences.
George Wang:
Ravi Ragbir has been a vocal immigration reform activist since 2006 when he started fighting his own deportation order. But more than 10 years later in 2018 when he was sitting in the ICE office in Lower Manhattan, it looked like maybe that fight was over.
Ravi Ragbir:
The assistant director came in and he said, "This is it. You're going. You're going." Right? As he said those words, my heart started to race, beat three times more faster, and I felt that I was going to faint.
George Wang:
And he did, briefly. But that was enough reason for ICE agents to call an ambulance.
Ravi Ragbir:
This is what they said they called the ambulance. But it wasn't just an ambulance, they realized they could use it as a way to spirit me out.
George Wang:
At that moment outside the building, NYPD officers were violently confronting protesters who showed up by the hundreds to support Ravi. He went into the ICE offices knowing he might not come out, so he brought a lot of friends.
Police Officer:
Back up, back up, back up, back up, back up!
Ravi Ragbir:
It was surreal. I would say if you ask me what I felt, I don't know what I felt. I had an out body of experience just watching this. Because if I allowed myself to get wrapped up in my emotions, I don't know what I would've done or what I felt, what I would have... I had to keep myself from breaking down.
George Wang:
After he recovered, Ravi was handcuffed and loaded up into an ambulance. But when the ambulance tried to leave, protestors, including a handful of New York City council members tried to stop it.
Democracy Now! Newscaster:
The ambulance drove down Broadway, city council members Ydanis Rodriguez and Jumaane Williams sat down to block its way.
George Wang:
Eventually, the ambulance made it to the hospital. That was when an agent turned to Ravi's wife, Amy.
Ravi Ragbir:
And they told her, "Get out," and as soon as she came out, they closed the door and they sped away. Right? They sped away because they didn't want her with me.
George Wang:
By that night, Ravi was incarcerated 1200 miles away in a Miami immigration detention center. So why did ICE go through all this trouble just to get rid of one man? Ravi was clearly not a threat to national security. What he was, was a squeaky wheel, a really, really squeaky wheel.
Ravi Ragbir:
How the people would describe me, especially immigration and customs enforcement, is I'm a pain in the ass. I talk a lot, but when I speak, it's about highlighting the issues around the injustice and the darkness that represents the immigration framework that is the United States, right?
George Wang:
Ravi is passionate and outspoken, and he hasn't been shy about calling out ICE. In fact, there's a chance you've heard of him. The story of his activism and subsequent detention made international news because it seemed to be an obvious retaliation for his criticism of US immigration policies. You might be asking yourself, "How can the government do this?"
This is Speech & the Border. At the frontiers of censorship and surveillance. My name is George Wang and I'm a lawyer at the Knight First Amendment Institute at Columbia University. As an immigrant, a former green card holder, and now a US citizen, understanding how the law shapes the people and ideas that move across borders isn't just a professional interest, it's personal.
The border has long been a gray area for free expression. For much of its history, the United States government has used the border as a pretext for surveillance and censorship. In the digital age, new technologies have reshaped what the border means, which has only reinforced the government's power to control the flow of information.
In this series, we will explore the often precarious state of free expression at and across borders. Make no mistake, even natural-born US citizens are not immune to the kinds of threats we'll discuss over the next few weeks. Anyone coming into the US could be subject to a suspicionless search of their laptop or phone, and anyone anywhere could be a victim of the long arm of repressive governments around the world.
Thanks to a thriving international market for spyware, the Knight First Amendment Institute is dedicated to defending the freedoms of speech and the press in the digital age. Over the next few episodes, you'll hear from different Knight Institute lawyers like me, along with some of the people we've worked with: people like Ravi Ragbir.
Ravi Ragbir:
I came here because I wanted to. I came here because I wanted to have the flexibility going to school, working, et cetera, et cetera.
George Wang:
Ravi came to the US from Trinidad and Tobago more than 30 years ago.
Ravi Ragbir:
I used to be on eighth floor cleaning windows. I used to be working in a liquor store. I used to be working in an insurance company.
George Wang:
One of the places he worked was Household Finance Corporation. Ravi was living here as a permanent resident and working for Household as a salesman. That is until the company was being sued for fraud and Ravi was caught up in the proceedings.
Ravi Ragbir:
They accused me of approving loans and approving the loans so that co-conspirator who they charged me with would benefit from that. I did not benefit from those loans. I just benefited from the work I did as the account executive or the salesperson.
George Wang:
He was convicted of wire fraud and sentenced to prison. The conviction, as many convictions do, meant that he was subject to possible deportation. After serving a couple of years in prison, he was transferred to immigration detention in Alabama. To Ravi, there is prison, and then there was this,
Ravi Ragbir:
When you in prison, you say you do your time, don't let the time do you, right? And the way you do time is you count down the days. You can grasp for that. But in immigration, there is no countdown. There is no end to that time in prison, and because of that, you are never calm.
George Wang:
The threat of violence was also ever-present. Ravi remembers an incident where officers fired into a cell with pepper grenades, which made it impossible to breathe.
Ravi Ragbir:
And then they came in and they handcuffed us and dragged us by the scruff of our neck and smashed our face in the Wreckyard, which is concrete.
George Wang:
Attorneys visited the detention center Ravi was held at, and he told them about what happened. Eventually, they were able to help him get released in 2008, but that didn't mean that Ravi was free.
Ravi Ragbir:
I had an ankle monitor for about eight months, so I had to go to ICE three times a week to check in and to report. And then they are supposed to come to my home every other week unannounced. So can you guess how I actually lived? I do not remember for those months how I survived. What I did... I mean, I'm here and I've survived it, but thinking about how I would go in on those three days every day thinking whether this is it, but it is not just about that financially, how was I able to take care of myself and I have no memory because it's just a black space there.
George Wang:
All of this, his conviction, his detention, living under the close watch of immigration authorities galvanized Ravi into a ferocious advocate for immigration reform. Ravi eventually became a full-time organizer for an immigration advocacy organization, the New Sanctuary Coalition based in New York City.
Ravi Ragbir:
The New Sanctuary Coalition is faith-based. It used to be made up of houses of worship and people of faith. So the congregation, the faith leaders, and the house of worship on the denominations. We open that up, so anybody with faith were a member.
George Wang:
People of faith supporting and protecting immigrants in their community.
Ravi Ragbir:
When I do presentations, I speak about people facing immigration, deportation, or immigrants on the whole. I don't refer to them as immigrants or migrants. I refer to them as friends, right? The word immigrant, the word migrant is so toxic that once you throw it out, you first have to deal with that toxicity before you can talk about anything else. So let's move away from that. They're all friends and therefore let's talk about how we can help our friends and how we can be there to support them.
George Wang:
Ravi would eventually become the executive director of the New Sanctuary Coalition. He knew firsthand how isolated the immigration system can make someone feel. During his regular check-ins with ICE, he drew on the support of family and friends, some of whom would join him at these appointments. Having someone there made a huge difference. Ravi started to realize this could also be a powerful form of activism.
Ravi Ragbir:
Now everyone does accompaniment, right? You just go with somebody and you're there.
George Wang:
Okay, when he puts it like that, it sounds simple, but Ravi was teaching volunteers to do more than just show up and physically be there. Accompaniment was also a powerful form of resistance.
Ravi Ragbir:
Because the imagery of ICE is about intimidation, it's about strength, it's about, "I can destroy you," and they're a civil agency. So one of the first things we had to teach people is as a citizen, ICE has no power over you, so you can stand up to ICE. Obviously, you can't stop them taking Ravi away, but ICE has no authority from you. We changed the way people looked at the way they interacted. Our training about the accompaniment is about every step, how, what you would do if an officer does this to you, what would you do if this happens?
George Wang:
So not only was Ravi advocating for change, but he was training others on how to protect their neighbors, their friends, and through these actions, he was challenging ICE's authority and its culture of fear.
It's starting to make sense why Ravi's work might bother ICE, but of course, that's kind of the point. It's activism, it's resistance, and it's constitutionally protected.
After Ravi disappeared in an ambulance on the morning of January 10th, 2018, his lawyers raced to keep him in the country and succeeded. Ravi then sued the government, accusing ICE of violating his first amendment rights by targeting him for deportation because of his activism. If ICE were permitted to deport Ravi in retaliation for his advocacy, it would have grave consequences for free speech. Left unchecked, ICE could easily abuse that power to go after individuals facing removal orders simply because they express views the government doesn't like.
What happened to Ravi might sound extraordinary, but unfortunately, it's not. It's in line with a practice that has a long history in this country, one called ideological exclusion.
Julia Rose Kraut:
Ideological exclusion is the barring of foreign non-citizens based on their political beliefs, expressions, and associations.
George Wang:
Julia Rose Kraut is a lawyer, historian, and author of the book, Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States.
Julia Rose Kraut:
Some people think it's an immigration issue. Some people think it's a free speech, First Amendment issue. It's both.
George Wang:
The First Amendment safeguards one of our most important and precious liberties, the freedom of speech, and that freedom includes the right to criticize the government. So when the government tries to kick out its critics or bar them from entering the country, well that's a betrayal of the promises of the First Amendment and of our democracy.
But Julia says that the fear that Americans may somehow be subverted by a dangerous foreign element is a fear almost as old as America itself, in our country's long, long history of ideological exclusion is still haunting us today.
It's 1901 and President William McKinley was just assassinated by a man named Leon Czolgosz.
Julia Rose Kraut:
And Czolgosz was born in the United States, but as the press reported, had a "foreign-sounding name", and this is the event that really marks United States' entry into what would be referred to as the War on Anarchy.
George Wang:
By the time McKinley was shot, European leaders had already been working to suppress anarchist newspapers and to deport anarchists branding them a threat. The Knight Institute's home state of New York outlawed the advocacy, teaching or publication of anarchist ideas, and the federal government wanted to follow suit. So in 1903, Congress passed the Alien Immigration Act.
Julia Rose Kraut:
So this is a law that excludes anarchists from the United States defined as a person who disbelieves in or is opposed to all organized government or who is a member of or affiliated with an organization entertaining and teaching such belief.
And notice there is no distinction between a violent or a philosophical anarchist in this law. How are you going to determine who's an anarchist? Couldn't they just lie in terms of if someone's asking you, "Do you believe in anarchy?"
George Wang:
Of course, not all anarchists were trying to assassinate world leaders, but the law didn't draw a line. Instead, it outlawed engaging with the very idea of anarchy itself, or at least it tried. After the McKinley assassination, any anarchist was considered dangerous.
The same year the Alien Immigration Act was passed, a man named John Turner was arrested in New York City. Turner was an English trades unionist, an anarchist who had been invited to the US to give a lecture. But once he arrived, he was almost immediately ordered deported for his anarchist beliefs.
Turner decided to work with a newly formed organization called the Free Speech League to challenge the constitutionality of the Alien Immigration Act.
Julia Rose Kraut:
He's challenging the constitutionality of the Alien Immigration Act on the unchecked absolute power of public officials to exclude and the First Amendment violation of freedom of expression and belief, and then argues that the act had turned public officials enforcing it into censors.
George Wang:
Turner for the record, wasn't confident in his case. While out on bail before the Supreme Court made a decision he had already packed up and returned to England. He figured he would lose.
Julia Rose Kraut:
And he was right. So Chief Justice Melville Fuller in a unanimous decision upholds the constitutionality of the Alien Immigration Act. He writes that Congress has the power and the right to exclude anyone it wishes, including anarchists.
George Wang:
The Turner case established a very troubling precedent. It meant that not only could the government exclude whoever it wanted to, but it could basically do so with impunity making it nearly impossible for non-citizens living in the US to bring a challenge. It didn't matter that Turner was not himself violent and had only been invited to give a talk. All that mattered was he had the wrong ideas, dangerous ideas, at least according to the government. The court applied what's called the plenary power doctrine.
Julia Rose Kraut:
The immigration legal doctrine, the plenary power doctrine is established by a series of Supreme Court decisions in the late 19th century, including Chae Chan Ping versus United States 1889, which upheld Chinese exclusion. And in these cases, the Supreme Court declared that as a sovereign nation, the United States had an inherent right to self-preservation and had a plenary power to restrict immigration to protect itself.
Under the plenary power doctrine, well, Congress held the power to exclude public officials under the executive branch also held the power to enforce and implement these exclusions, and the judiciary should defer to the decisions of Congress and public officials.
George Wang:
Okay, so the Supreme Court upholds the Alien Immigration Act and it basically says where immigration is concerned, Congress and the executive branch get to make all the decisions, they don't even need to really explain themselves, and this becomes the playbook. As time passes and new supposed threats emerge, the government then uses its expansive immigration powers to target new groups and new ideas.
By the 1940s and fifties, the threat of the day was communism.
Herbert Philbrick:
Communism is a lying, dirty, shrewd, godless, murderous, determined, as J. Edgar Hoover says, "A criminal conspiracy."
George Wang:
As anti-communist hysteria gripped the country throughout the 1950s, Congress only became more determined to root out alleged communists. Enter the McCarran-Walter Act of 1952.
Julia Rose Kraut:
And it's passed by Congress during the height of McCarthyism and it becomes the most comprehensive and exclusionary law ever enacted, and includes provisions that explicitly exclude communists, or those affiliated with organizations that advocated, wrote, published, distributed, and taught world communism.
George Wang:
The President at the time, Harry Truman, was vehemently against the McCarran-Walter Act and called its ideological exclusion provisions, "Thought control," and, "Inconsistent with our democratic ideals." When the bill hit his desk, he actually vetoed it. In his veto statement, he forcefully wrote, "Seldom has a bill exhibited the distrust evidence here for citizens and aliens alike."
But Congress voted to override his veto and enact the law anyway. The act was used to turn away many prominent political and cultural figures, including the novelist, Gabriel Garcia Marquez, the poet, Pablo Neruda, and the playwright Dario Fo. In fact, this law was practically an annual source of scandal. Mexican writer, Carlos Fuentes was denied entry in 1962 and banned from the US for 30 years due to suspected communist ties.
Carlos Fuentes:
I asked once, "Do you ever get out of that list? Can I ever get out?" And said, "No, no, no." I said, "Even hell has its limits. Even in hell, you're promised that one day everybody will go to purgatory or to heaven, hell is not forever. Surely the denial of a visa is not forever."
George Wang:
Unsurprisingly, the McCarran-Walter Act was eventually put to the test a few decades later.
Julia Rose Kraut:
So in 1969, a Belgian Marxist economist and journalist named Ernest Mandel is invited to a number of American universities and colleges to speak on their campuses, including Amherst, Princeton, Columbia, MIT, and Stanford.
George Wang:
When Mandel applied for a visa, his application was denied. That was especially strange considering this wasn't his first visit to the United States.
Julia Rose Kraut:
According to correspondence with a US consular official in Belgium, unbeknownst to Mandel, he's technically excluded under a section of the McCarran-Walter Act, barring those who advocate, write, or publish doctrines of world communism. But in his previous trips, he had been issued a waiver of inadmissibility and that's how he was able to enter the United States.
George Wang:
Waivers needed to go through the Secretary of State and the Attorney General.
Julia Rose Kraut:
The State Department said that it had not recommended the waiver because it claimed Mandel had violated the restrictions on the conditional visa he received in 1968.
George Wang:
Apparently, on one of Mandel's earlier visits, he had strayed from his stated itinerary. That year, 1968, was the year of a seven-week-long mass uprising in France called the Student Protests.
Mandel was visiting New York at the time, and during that visit, he went to a cocktail party, a party where the hosts happened to be raising money for the legal defense of those demonstrators in France. Going to that party, the government said violated the terms of Mandel's visa.
Julia Rose Kraut:
Mandel insisted that he was not involved in the fundraising, had no idea that he had been traveling under a conditional restricted visa.
George Wang:
He even told the government more or less that he'd behave next time. The State Department was convinced, but remember, he also needed the Attorney General.
Julia Rose Kraut:
But Attorney General John N. Mitchell refuses to grant it, and this results in a public rift between the state and justice departments where Secretary of State William P. Rogers, while discussing the Mandel case, asks, "Why should we be afraid of this man and his ideas?"
George Wang:
Why indeed? Julia actually tried to find out the answer.
Julia Rose Kraut:
The Justice Department also says in documents I found through Freedom of Information Act, that it doesn't want to import any more trouble than it has, citing Mandel's exclusion from France and support of the May protests, but really doesn't want to import any more trouble or speakers to talk on college campuses.
George Wang:
Ah, so there it is. It's all about the government's fear that Mandel's ideas from abroad would stir up trouble at home.
Julia Rose Kraut:
The Nixon administration was using ideological exclusion as a tool of political repression, and there is an outcry. There's an outcry from academics, students, public, members of the press, and they reiterate arguments made in the 1950s that this is a form of censorship. It's damaging to United States. It's making the United States look fearful. It's a threat to academic freedom. It undermines American values and principles, and it makes the nation seem fearful of ideas and a lack of confidence in their own.
George Wang:
But challenging his exclusion was no easy feat for Mandel. John Turner's case at the start of the century establish the precedent that foreign visitors seeking admission to the country lack the ability to vindicate their own First Amendment rights in court. Mandel could not sue on his own behalf, so his lawyers got creative.
Julia Rose Kraut:
What they do is they use the recent legal precedent establishing the right to hear as well as the right to receive information and has the American professors inviting Mandel to college campuses challenge the exclusion as a violation of their First Amendment right to receive information and to hear. So this is revolutionary.
George Wang:
Mandel's argument was not that the First Amendment protected his own right to speak, but that it protected the professor's right to hear from foreign visitors. The argument was clever and inventive and it ended up working, sort of.
Julia Rose Kraut:
Okay, so we have a decision by Justice Harry Blackmun, and the good news is that those within the United States can claim they are harmed by the exclusion. All right, so this is a pathway to challenge exclusion. They've hit it, they figured it out. Here's the bad news. The professors lose and Mandel is excluded.
George Wang:
Once again, the court calls upon the plenary power doctrine and defers to the government because the court considers Mandel's case to be an immigration issue, not a free speech issue, but Justice Blackmun did poke a tiny hole in the plenary power doctrine.
Julia Rose Kraut:
They can't just exclude without a reason, so the government is required to issue a facially legitimate and bona-fide reason for the exclusion, and he finds that that cocktail party stray from the itinerary is facially legitimate and a bona-fide reason.
George Wang:
So Mandel loses, but he doesn't go down without sounding off.
Julia Rose Kraut:
He thanks all of his lawyers and all who advocated on his behalf. And then he says, "No revolutionary change was ever prevented by trying to suppress free circulation of ideas. If anything, such measures of suppression always in the end hasten radical social change rather than stopping it."
John Lennon:
Peace on earth. That implies no violence, no fear.
George Wang:
Another decade later, another immigrant, a certain Beatle would find himself in something of a similar position. John Lennon, rock star, artist, dreamer was admitted to the US in 1970 under a waiver of inadmissibility a few years earlier, he had been convicted in England of possessing cannabis, which meant that he was excluded from the US under the McCarran-Walter Act unless he was granted a waiver.
Unlike with Mandel, the government says, "Yes, Lennon can come," but his time in the US ended up raising some eyebrows.
Julia Rose Kraut:
He is an outspoken critic of the Vietnam War and the Nixon administration with his wife Yoko Ono. He participates in rallies, TV interviews, the recording of Give Peace A Chance, and then in 1972, citing the drug conviction, the Justice Department refuses to renew Lennon's visa and orders him to leave the United States. And he says, "The real reason that I'm being ordered deported is because I'm a 'peacenik'."
George Wang:
Lennon said as much when he went on The Dick Cavett Show that year to talk about the case.
John Lennon:
They're after us because we talk about peace.
Yoko Ono:
Outspoken because we stand for something.
John Lennon:
Because we want peace. We've said the same thing for two years different one way or another, and we believe in it.
Yoko Ono:
The only thing we promoted was peace and love.
Julia Rose Kraut:
And so Lennon hires a lawyer to challenge this deportation order and that lawyer files a Freedom of Information Act to find out what the real motivations are about this strange deportation order. And this is a perfect example of a retaliatory or selective deportation.
George Wang:
Before 1972, Lennon had not been a priority for deportation, but that year something changed. As President Nixon was running for re-election, Republican Senator Strom Thurmond sent a letter to the Justice Department, urging the Attorney General to move Lennon up the list.
Julia Rose Kraut:
Lennon is affiliated with the new left groups and attracts young voters, and the voting age has actually been lowered now to 18, and there's concern about Lennon's popularity among the young and that he's going to help the new left, and this is going to thwart the re-election of Nixon. And so as a countermeasure, Strom Thurmond proposes, why don't you deport Lennon?
George Wang:
Nixon won re-election, but then Watergate happened, so he got busy with other things. Meanwhile, Lennon was still challenging his deportation order in court after Nixon resigned in 1974. And a year later, an appeals court found that Lennon's drug conviction didn't technically justify his exclusion.
Julia Rose Kraut:
Furthermore, it acknowledges that this is selective deportation, acknowledges the motivations when Lenin's lawyer produces all of this evidence, and the Second Circuit Court of Appeals says, will not condone selective deportation based on secret political grounds. And it's clear that the Nixon administration was trying to silence political opposition, which would be squarely protected under the First Amendment.
George Wang:
Lennon was able to get his green card another year later in 1976.
TV Anchor:
And this was what it was all about. Finally, after four and a half long years of struggle, John Lennon got his card, a green card, saying that he's now a permanent resident of the United States.
John Lennon:
Right on brother.
George Wang:
The stories we've discussed so far span decades and they involve everyone from anarchists to communists to peaceniks. The thread that ties all these people together: they wanted to share ideas that the government at the time viewed as dangerous or subversive. Not even the world-famous John Lennon was safe.
These tools of ideological exclusion have unfortunately not been relegated to the dustbin of history. In fact, they've found renewed significance in the years following the attacks on September 11th, 2001.
Geroge W. Bush:
Today we take an essential step in defeating terrorism. With my signature, this law will give intelligence and law enforcement officials important new tools to fight a present danger.
George Wang:
Just six weeks after the attacks, Congress passed the infamous USA PATRIOT Act. The so-called War on Terror that followed fundamentally altered American life for citizens and non-citizens alike. It ushered in an era where the government freely traded off our most basic civil liberties for the fantasy of increased security. It was during this time that the Department of Homeland Security was established along with one of its most important and powerful component agencies, US Immigration and Customs Enforcement, ICE.
Geroge W. Bush:
The new department will analyze threats, will guard our borders and airports. The Department of Homeland Security will focus the full resources of the American government on the safety of the American people.
George Wang:
The newfound focus on perceived terrorist threats naturally led to a reinvigoration of the government's practice of ideological exclusion. During the Bush administration, the State Department routinely denied visas to foreigners whose political views it disfavored. This time, the primary targets of exclusion were Arab and Muslim intellectuals and scholars, especially those who criticized American foreign policy. This included Adam Habib, a South African scholar and expert on democracy, race, and social movements.
Habib had frequently traveled to the US and had even earned his Ph.D. from The City University of New York. He also happened to be a vocal critic of US foreign policy. In 2006, he was invited to come to the US to meet with members of a number of prominent institutions including the NIH, the CDC, the World Bank, and Columbia University. But when he arrived at JFK Airport in New York, the State Department revoked his visa and refused to let him into the country. He was led back to an aircraft by armed guards and deported.
Adam Habib:
Well, the question is between the last time I'd come in 2004 and 2006, what had changed and the only thing that I can imagine was the Iraq War. There were demonstrations in South Africa. I was opposed to the war. I addressed those demonstrations. I did say very clearly that I thought it was a wrong thing.
George Wang:
The State Department even extended the exclusion to Habib's wife and two kids. It later told Habib that he was being barred from the country because he was "engaged in terrorist activities". But the government never explained the basis for that accusation.
The ACLU almost immediately challenged Habib's visa denial on First Amendment grounds. But it wasn't until 2010, four years later, that Habib was finally able to enter the country again. He was just one of dozens of scholars, artists, and activists who are barred from the US during the Bush administration.
Years later, when Donald Trump became President in 2017, he did not need to rely on any new laws to begin excluding people from the country. All of that groundwork was more or less already there.
Donald Trump:
Nobody has any idea where these people are coming from, and we know they come from prisons. We know they come from mental institutions and insane asylums. We know they're terrorists. It's poisoning the blood of our country.
George Wang:
With his hands on the levers of power, Trump oversaw a dramatic expansion of exclusionary immigration policies just like he promised on the campaign trail. His infamous Muslim ban, which targeted travelers from Muslim-majority countries, was carried out using powers invested in the President under the McCarran-Walter Act.
Donald Trump:
The immigration laws of the United States give the President powers to suspend entry into the country of any class of persons. Now, any class, it really is determined and to be determined by the President for the interests of the United States, and it's as he or she deems appropriate.
Julia Rose Kraut:
Soon after, almost immediately, the travel ban is implemented and there's chaos.
George Wang:
Historian and lawyer Julia Rose Kraut.
Julia Rose Kraut:
So there's chaos in the airports. There's a question about how it's going to be implemented. What about people in the air? Are they going to now be banned if you have invalid visas. There's a rush. There's a rush of lawyers to the airports, there is rush of protesters protesting this ban to the airports.
Protestors:
Fuck white supremacy! No ban! No registry! Fuck white supremacy!
Julia Rose Kraut:
There's a rush to the courthouses to try to get injunctions. I remember this well and there's terrible uncertainty about what's going to happen and terrible uncertainty from those within the United States about their loved ones, those outside of the United States, those who want to leave, will they be barred trying to come back and separation of families too in terms of this ban.
George Wang:
The travel ban was almost immediately challenged in court and it went to the Supreme Court in a case called Trump V. Hawaii. The court split 5-4 along ideological lines and upheld the ban. And what the court basically said is that it needed to step aside because this was an immigration matter.
Julia Rose Kraut:
What you have is the application of the plenary power doctrine once again. The courts are going to defer to the judgment of President Trump.
George Wang:
Whether the ban was ideologically motivated didn't factor into the court's decision at all, even though the President's intentions weren't exactly a mystery to anyone paying attention. Instead, the court reaffirmed the president's sweeping authority to shape immigration policy in exclusionary ways.
For the rest of his term, Trump used those powers to create a culture of intimidation and fear among those he targeted. Ravi Ragbir certainly took notice.
Ravi Ragbir:
This is like the Katrina that is going to overtake any wall that is going to be built because this seed that is love is going to make that change. But there are hundreds of people going in there at the moment. We need to protect them. We need to protect each other.
George Wang:
This is Ravi speaking to a crowd outside of ICE headquarters in Lower Manhattan in 2017, right before walking into an appointment with ICE officers. As always, he didn't come alone. By this point, he had been under a stay of removal for six years and his check-ins with ICE had diminished from a few times a week to a few times a year.
Can you tell me about what happened during your scheduled check-in with ICE on March 9th, 2017? Did it feel different from your prior check-ins?
Ravi Ragbir:
Of course it did. This was the first check-in after the administration had changed. So of course it was different. We knew that. This was the time when people were told by the deportation officers, "Hey, you need to come with a passport and a ticket. We are going to deport you tomorrow," whatever. And people were walking in with passport and tickets. So we knew this wasn't going to be an easy check-in.
George Wang:
Hundreds of people crowded Federal Plaza, the imposing Lower Manhattan building that houses the federal immigration court. Ravi brought many people inside with him, including a handful of elected officials. He thinks that made a difference. ICE declined to deport Ravi that day, but told him to come prepared with a passport and a ticket next time.
As the year wore on, Ravi knew people who weren't so lucky who did get detained and deported. According to agency data, ICE arrests shot up 30% that year. Newly emboldened agents surprised people at work, at court, in places that had previously been considered off-limits for immigration arrests.
Ravi feels certain that agents were looking for opportunities to do the same to him.
Ravi Ragbir:
My lawyers, my friends, my community, they started walking with me when I went from the office to my home and back. And that night when we knew they were looking for us, people went out on the streets and saw ICE vehicles around the office and around my home. So my friend, he went to see what was happening at my home, and when he took all the keys, he heard the walkie-talkie squawking. He heard a lot of that, right? So he knew that there were vehicles there. And when I was at the office, my attorney, she's an awesome person, right? She was pregnant, nine months pregnant, and she went on the street looking and asking, "Are you my Uber," to see who it was. And when you look down, you will see the ICE license plate on the floor. Oh yeah, we know you're ICE.
George Wang:
Despite living in this climate of fear, Ravi continued to show up for his ICE appointments with his crowds of friends, family, clergy, and fellow activists in tow. After that March, check-in, he remembers someone asking him why.
Ravi Ragbir:
I said if I am not willing to take that risk, but all the support and all the things that we have done, if I'm afraid to do that, how can other people be willing to stand up? You have to set the standard. You have to be walking out here. Yeah, I could get deported, but I know that I have done what I needed to do and if someone else gets inspiration from that, that could trickle down and affect others and be able to help others stand up also. So I went in there fully aware what could have happened, which it did happen.
George Wang:
January 10th, 2018, Ravi was directed to a room on the 10th floor of the ICE building. Only his wife and his attorney were allowed to go in with him. No one would answer any questions.
Ravi Ragbir:
The assistant director came in and he said, "This is it. You're going. You're going."
George Wang:
Everything moved really quickly after that. Ravi passed out, ICE agents called an ambulance that had to push through a crowd of demonstrators to make it away from Federal Plaza. Arriving at the hospital, agents told Amy, Ravi's wife, to get out and then sped away. Ravi was in detention in Florida by that night.
He could have been back in Trinidad the next day, but for the help of his lawyer. A week later, Amy published an op-ed about the whole experience in the New York Times. An immigration attorney herself she wrote, "I know how deportation tears at the fabric of families and communities, but now I am inside this nightmare personally, and it hurts more than I ever thought it would." The op-ed caught the eye of a lawyer who helped Ravi sue ICE.
Ravi Ragbir:
And he said, "This is a First Amendment issue." And he reached out to them. I was in detention already, right? And he reached out to them and he said, "Do you want me to take this case?" And obviously we said, "Yeah, take it," right?
George Wang:
Ravi and his legal team alleged that the agency's attempt to deport him was part of a broader pattern of retaliation against immigrants who freely exercise their right to free speech. His case went up before the Court of Appeals for the Second Circuit.
Ravi Ragbir:
And the appeal court said, "Yes, you have a right. There's definite retaliation here, and you have a First Amendment protection right."
George Wang:
As the litigation progressed, Ravi learned why exactly ICE had been so hell-bent on targeting him.
Ravi Ragbir:
In their documents that they submitted the court they said they didn't like how I described them as Nazis and all of these things, right? They wrote that I was very loud and they were very annoyed with me. And a lot of what came out on the court papers is that they were surveilling me regularly.
So the director even talked about the fact that he knew where I lived. He knew where I walked to get to the train, my route to go to the office. He even said I bebopped. I have no idea what bebopped means, right? But I bebopped. I wears fedora. He knew the fedora. He was given details that was shocking to everyone.
George Wang:
These admissions made it all the more obvious that it was Ravi's speech and activism that painted a target on his back for deportation. The Second Circuit agreed. It called ICE's conduct outrageous and explained that, "To allow this retaliatory conduct to proceed would broadly chill protected speech among not only activists, subject to final orders of deportation, but also those citizens and other residents who would fear retaliation against others."
We at the Knight Institute filed an amicus brief in support of Ravi to make clear that the government cannot wield the threat of deportation as a tool to suppress the speech of non-citizens. Forcing immigrants to choose between expressing their opinions or remaining in the country violates the most basic guarantees of the First Amendment. Eventually, the government offered Ravi a settlement which included a three-year deferred action. In 2022, he chose to accept.
Ravi Ragbir:
The end of that three years is this year, 2024. So after 2024, I'll be back in the position as of 2018, and therefore they can take me away at my next check, which is in January 2025.
George Wang:
What happens after that?
Ravi Ragbir:
What happens after that? They could use that final order to shackle me and deport me at any time after the deferred action. So what happens afterwards is that every day I would be living like how I used to live when I got released from detention, not knowing what tomorrow will bring. It's not something you should be living true. And this is just not just about me, George. This is not about only what I am living and what Ravi... No, this is about every single immigrant. This is about every single immigrant who is under the threat of deportation, who lives under that. We have thousands of people. We have millions of people.
George Wang:
That's why after everything Ravi believes his case against the government was worth it.
Ravi Ragbir:
When you looked at what was our objective in this lawsuit, obviously to call out the retaliation, and it was good that we call it retaliation because this is what fascism is about: retaliation against people who speak out. If it's in the court and it's public documents, it can be used by everyone.
George Wang:
Thanks to Ravi's lawsuit, people now know the truth about ICE's attempts to silence activists with the threat of deportation. What happened to him shows us what follows when we allow the government to use its immigration powers to target people for expressing so-called dangerous ideas. Historian Julia Rose Kraut doesn't mince words.
Julia Rose Kraut:
Ideological exclusion is a form of censorship and it violates the First Amendment and it can lead to a chilling effect on free speech and association causing individuals to suppress their beliefs and expressions and to preclude their associations due to fear and intimidation and their expressions and beliefs are not actual national security threats.
George Wang:
Our country's long and troubled history with ideological exclusion illustrates the vast and largely unchecked power the government wields in immigration enforcement. Even when its authority raises serious free speech concerns, it is one of the reasons the border is often viewed as a gray area, even an exception when it comes to fundamental constitutional protections.
These practices only become more concerning when new technology comes into play. In a world mediated by electronic devices, social media and algorithms, the very concept of the border itself is being reshaped as we speak. That has enabled the government to employ new and even more expansive forms of censorship and surveillance designed to silence viewpoints and suppress dissent.
Julia Rose Kraut:
There's a warning sign that we received in 2019 about this, and this is Ismail Ajjawi, a Palestinian student from Lebanon arriving at Boston Logan International Airport in late 2019 on his way to begin his freshman year of college at Harvard University. And he carried a valid visa with him and Ajjawi was detained and questioned for a number of hours by US Customs and Border Protection, and his phone was searched. And subsequently his visa was revoked and he was deemed inadmissible due to political views. Opposing the United States are critical of the United States, not posted by him, but posted on one of his friends lists. And this is a perfect example of guilt by association through the use of social media.
George Wang:
Needless to say, the framers didn't have smartphones or social media in mind when they drafted the First Amendment. And as technology continues to develop, sometimes our rights get left behind. The government has taken advantage of this gap between our constitutional protections and new technologies to collect data on and engage in censorship of citizens and non-citizens alike.
But new threats also mean new opportunities for resistance. We at the Knight Institute are dedicated to defending the freedoms of speech and the press in the digital age. Over the next few episodes, we'll explore the changing role of the border as a location, justification, and pretext for government surveillance and censorship, and how we are fighting back.
On the next episode of Speech & the Border, social media. Love it or hate it, so much of what we do nowadays is online. But visa applicants know better than most that nothing they do online is truly private. Immigration authorities have been collecting their social media handles since 2019 as part of extreme vetting policies that are still in effect.
Faiza Patel:
Once you give the social media handle to the government, it's not just going to keep it, right? It's going to use it in order to find out stuff about you.
George Wang:
The dangers of government social media surveillance. I am George Wang. I'm a lawyer at the Knight First Amendment Institute. Thank you for listening to this episode. Speech & the Border is co-produced by Ann-Marie Awad and Kushal Dev. Our executive producer is Candace White. Our engineer is Patrice Mondragon. Creative direction from Carrie DeCell. Fact-checking by Roni Gal-Oz and Teddy Wyche. The art for our show was designed by Nash Weerasekara. Our theme music was composed by Grayton Newman with additional music from Epidemic Sound. Views on First is available on Apple, Spotify, and wherever you listen to podcasts.
Please subscribe and leave a review. We'd love to know what you think.
To learn more about the Knight Institute, visit our website KnightColumbia.org. That's Knight with a K, and follow us on social media. Special thanks to Hanger Studios. Bye now.
This podcast episode contains mature language and may not be suitable for all audiences.
George Wang:
Ravi Ragbir has been a vocal immigration reform activist since 2006 when he started fighting his own deportation order. But more than 10 years later in 2018 when he was sitting in the ICE office in Lower Manhattan, it looked like maybe that fight was over.
Ravi Ragbir:
The assistant director came in and he said, "This is it. You're going. You're going." Right? As he said those words, my heart started to race, beat three times more faster, and I felt that I was going to faint.
George Wang:
And he did, briefly. But that was enough reason for ICE agents to call an ambulance.
Ravi Ragbir:
This is what they said they called the ambulance. But it wasn't just an ambulance, they realized they could use it as a way to spirit me out.
George Wang:
At that moment outside the building, NYPD officers were violently confronting protesters who showed up by the hundreds to support Ravi. He went into the ICE offices knowing he might not come out, so he brought a lot of friends.
Police Officer:
Back up, back up, back up, back up, back up!
Ravi Ragbir:
It was surreal. I would say if you ask me what I felt, I don't know what I felt. I had an out body of experience just watching this. Because if I allowed myself to get wrapped up in my emotions, I don't know what I would've done or what I felt, what I would have... I had to keep myself from breaking down.
George Wang:
After he recovered, Ravi was handcuffed and loaded up into an ambulance. But when the ambulance tried to leave, protestors, including a handful of New York City council members tried to stop it.
Democracy Now! Newscaster:
The ambulance drove down Broadway, city council members Ydanis Rodriguez and Jumaane Williams sat down to block its way.
George Wang:
Eventually, the ambulance made it to the hospital. That was when an agent turned to Ravi's wife, Amy.
Ravi Ragbir:
And they told her, "Get out," and as soon as she came out, they closed the door and they sped away. Right? They sped away because they didn't want her with me.
George Wang:
By that night, Ravi was incarcerated 1200 miles away in a Miami immigration detention center. So why did ICE go through all this trouble just to get rid of one man? Ravi was clearly not a threat to national security. What he was, was a squeaky wheel, a really, really squeaky wheel.
Ravi Ragbir:
How the people would describe me, especially immigration and customs enforcement, is I'm a pain in the ass. I talk a lot, but when I speak, it's about highlighting the issues around the injustice and the darkness that represents the immigration framework that is the United States, right?
George Wang:
Ravi is passionate and outspoken, and he hasn't been shy about calling out ICE. In fact, there's a chance you've heard of him. The story of his activism and subsequent detention made international news because it seemed to be an obvious retaliation for his criticism of US immigration policies. You might be asking yourself, "How can the government do this?"
This is Speech & the Border. At the frontiers of censorship and surveillance. My name is George Wang and I'm a lawyer at the Knight First Amendment Institute at Columbia University. As an immigrant, a former green card holder, and now a US citizen, understanding how the law shapes the people and ideas that move across borders isn't just a professional interest, it's personal.
The border has long been a gray area for free expression. For much of its history, the United States government has used the border as a pretext for surveillance and censorship. In the digital age, new technologies have reshaped what the border means, which has only reinforced the government's power to control the flow of information.
In this series, we will explore the often precarious state of free expression at and across borders. Make no mistake, even natural-born US citizens are not immune to the kinds of threats we'll discuss over the next few weeks. Anyone coming into the US could be subject to a suspicionless search of their laptop or phone, and anyone anywhere could be a victim of the long arm of repressive governments around the world.
Thanks to a thriving international market for spyware, the Knight First Amendment Institute is dedicated to defending the freedoms of speech and the press in the digital age. Over the next few episodes, you'll hear from different Knight Institute lawyers like me, along with some of the people we've worked with: people like Ravi Ragbir.
Ravi Ragbir:
I came here because I wanted to. I came here because I wanted to have the flexibility going to school, working, et cetera, et cetera.
George Wang:
Ravi came to the US from Trinidad and Tobago more than 30 years ago.
Ravi Ragbir:
I used to be on eighth floor cleaning windows. I used to be working in a liquor store. I used to be working in an insurance company.
George Wang:
One of the places he worked was Household Finance Corporation. Ravi was living here as a permanent resident and working for Household as a salesman. That is until the company was being sued for fraud and Ravi was caught up in the proceedings.
Ravi Ragbir:
They accused me of approving loans and approving the loans so that co-conspirator who they charged me with would benefit from that. I did not benefit from those loans. I just benefited from the work I did as the account executive or the salesperson.
George Wang:
He was convicted of wire fraud and sentenced to prison. The conviction, as many convictions do, meant that he was subject to possible deportation. After serving a couple of years in prison, he was transferred to immigration detention in Alabama. To Ravi, there is prison, and then there was this,
Ravi Ragbir:
When you in prison, you say you do your time, don't let the time do you, right? And the way you do time is you count down the days. You can grasp for that. But in immigration, there is no countdown. There is no end to that time in prison, and because of that, you are never calm.
George Wang:
The threat of violence was also ever-present. Ravi remembers an incident where officers fired into a cell with pepper grenades, which made it impossible to breathe.
Ravi Ragbir:
And then they came in and they handcuffed us and dragged us by the scruff of our neck and smashed our face in the Wreckyard, which is concrete.
George Wang:
Attorneys visited the detention center Ravi was held at, and he told them about what happened. Eventually, they were able to help him get released in 2008, but that didn't mean that Ravi was free.
Ravi Ragbir:
I had an ankle monitor for about eight months, so I had to go to ICE three times a week to check in and to report. And then they are supposed to come to my home every other week unannounced. So can you guess how I actually lived? I do not remember for those months how I survived. What I did... I mean, I'm here and I've survived it, but thinking about how I would go in on those three days every day thinking whether this is it, but it is not just about that financially, how was I able to take care of myself and I have no memory because it's just a black space there.
George Wang:
All of this, his conviction, his detention, living under the close watch of immigration authorities galvanized Ravi into a ferocious advocate for immigration reform. Ravi eventually became a full-time organizer for an immigration advocacy organization, the New Sanctuary Coalition based in New York City.
Ravi Ragbir:
The New Sanctuary Coalition is faith-based. It used to be made up of houses of worship and people of faith. So the congregation, the faith leaders, and the house of worship on the denominations. We open that up, so anybody with faith were a member.
George Wang:
People of faith supporting and protecting immigrants in their community.
Ravi Ragbir:
When I do presentations, I speak about people facing immigration, deportation, or immigrants on the whole. I don't refer to them as immigrants or migrants. I refer to them as friends, right? The word immigrant, the word migrant is so toxic that once you throw it out, you first have to deal with that toxicity before you can talk about anything else. So let's move away from that. They're all friends and therefore let's talk about how we can help our friends and how we can be there to support them.
George Wang:
Ravi would eventually become the executive director of the New Sanctuary Coalition. He knew firsthand how isolated the immigration system can make someone feel. During his regular check-ins with ICE, he drew on the support of family and friends, some of whom would join him at these appointments. Having someone there made a huge difference. Ravi started to realize this could also be a powerful form of activism.
Ravi Ragbir:
Now everyone does accompaniment, right? You just go with somebody and you're there.
George Wang:
Okay, when he puts it like that, it sounds simple, but Ravi was teaching volunteers to do more than just show up and physically be there. Accompaniment was also a powerful form of resistance.
Ravi Ragbir:
Because the imagery of ICE is about intimidation, it's about strength, it's about, "I can destroy you," and they're a civil agency. So one of the first things we had to teach people is as a citizen, ICE has no power over you, so you can stand up to ICE. Obviously, you can't stop them taking Ravi away, but ICE has no authority from you. We changed the way people looked at the way they interacted. Our training about the accompaniment is about every step, how, what you would do if an officer does this to you, what would you do if this happens?
George Wang:
So not only was Ravi advocating for change, but he was training others on how to protect their neighbors, their friends, and through these actions, he was challenging ICE's authority and its culture of fear.
It's starting to make sense why Ravi's work might bother ICE, but of course, that's kind of the point. It's activism, it's resistance, and it's constitutionally protected.
After Ravi disappeared in an ambulance on the morning of January 10th, 2018, his lawyers raced to keep him in the country and succeeded. Ravi then sued the government, accusing ICE of violating his first amendment rights by targeting him for deportation because of his activism. If ICE were permitted to deport Ravi in retaliation for his advocacy, it would have grave consequences for free speech. Left unchecked, ICE could easily abuse that power to go after individuals facing removal orders simply because they express views the government doesn't like.
What happened to Ravi might sound extraordinary, but unfortunately, it's not. It's in line with a practice that has a long history in this country, one called ideological exclusion.
Julia Rose Kraut:
Ideological exclusion is the barring of foreign non-citizens based on their political beliefs, expressions, and associations.
George Wang:
Julia Rose Kraut is a lawyer, historian, and author of the book, Threat of Dissent: A History of Ideological Exclusion and Deportation in the United States.
Julia Rose Kraut:
Some people think it's an immigration issue. Some people think it's a free speech, First Amendment issue. It's both.
George Wang:
The First Amendment safeguards one of our most important and precious liberties, the freedom of speech, and that freedom includes the right to criticize the government. So when the government tries to kick out its critics or bar them from entering the country, well that's a betrayal of the promises of the First Amendment and of our democracy.
But Julia says that the fear that Americans may somehow be subverted by a dangerous foreign element is a fear almost as old as America itself, in our country's long, long history of ideological exclusion is still haunting us today.
It's 1901 and President William McKinley was just assassinated by a man named Leon Czolgosz.
Julia Rose Kraut:
And Czolgosz was born in the United States, but as the press reported, had a "foreign-sounding name", and this is the event that really marks United States' entry into what would be referred to as the War on Anarchy.
George Wang:
By the time McKinley was shot, European leaders had already been working to suppress anarchist newspapers and to deport anarchists branding them a threat. The Knight Institute's home state of New York outlawed the advocacy, teaching or publication of anarchist ideas, and the federal government wanted to follow suit. So in 1903, Congress passed the Alien Immigration Act.
Julia Rose Kraut:
So this is a law that excludes anarchists from the United States defined as a person who disbelieves in or is opposed to all organized government or who is a member of or affiliated with an organization entertaining and teaching such belief.
And notice there is no distinction between a violent or a philosophical anarchist in this law. How are you going to determine who's an anarchist? Couldn't they just lie in terms of if someone's asking you, "Do you believe in anarchy?"
George Wang:
Of course, not all anarchists were trying to assassinate world leaders, but the law didn't draw a line. Instead, it outlawed engaging with the very idea of anarchy itself, or at least it tried. After the McKinley assassination, any anarchist was considered dangerous.
The same year the Alien Immigration Act was passed, a man named John Turner was arrested in New York City. Turner was an English trades unionist, an anarchist who had been invited to the US to give a lecture. But once he arrived, he was almost immediately ordered deported for his anarchist beliefs.
Turner decided to work with a newly formed organization called the Free Speech League to challenge the constitutionality of the Alien Immigration Act.
Julia Rose Kraut:
He's challenging the constitutionality of the Alien Immigration Act on the unchecked absolute power of public officials to exclude and the First Amendment violation of freedom of expression and belief, and then argues that the act had turned public officials enforcing it into censors.
George Wang:
Turner for the record, wasn't confident in his case. While out on bail before the Supreme Court made a decision he had already packed up and returned to England. He figured he would lose.
Julia Rose Kraut:
And he was right. So Chief Justice Melville Fuller in a unanimous decision upholds the constitutionality of the Alien Immigration Act. He writes that Congress has the power and the right to exclude anyone it wishes, including anarchists.
George Wang:
The Turner case established a very troubling precedent. It meant that not only could the government exclude whoever it wanted to, but it could basically do so with impunity making it nearly impossible for non-citizens living in the US to bring a challenge. It didn't matter that Turner was not himself violent and had only been invited to give a talk. All that mattered was he had the wrong ideas, dangerous ideas, at least according to the government. The court applied what's called the plenary power doctrine.
Julia Rose Kraut:
The immigration legal doctrine, the plenary power doctrine is established by a series of Supreme Court decisions in the late 19th century, including Chae Chan Ping versus United States 1889, which upheld Chinese exclusion. And in these cases, the Supreme Court declared that as a sovereign nation, the United States had an inherent right to self-preservation and had a plenary power to restrict immigration to protect itself.
Under the plenary power doctrine, well, Congress held the power to exclude public officials under the executive branch also held the power to enforce and implement these exclusions, and the judiciary should defer to the decisions of Congress and public officials.
George Wang:
Okay, so the Supreme Court upholds the Alien Immigration Act and it basically says where immigration is concerned, Congress and the executive branch get to make all the decisions, they don't even need to really explain themselves, and this becomes the playbook. As time passes and new supposed threats emerge, the government then uses its expansive immigration powers to target new groups and new ideas.
By the 1940s and fifties, the threat of the day was communism.
Herbert Philbrick:
Communism is a lying, dirty, shrewd, godless, murderous, determined, as J. Edgar Hoover says, "A criminal conspiracy."
George Wang:
As anti-communist hysteria gripped the country throughout the 1950s, Congress only became more determined to root out alleged communists. Enter the McCarran-Walter Act of 1952.
Julia Rose Kraut:
And it's passed by Congress during the height of McCarthyism and it becomes the most comprehensive and exclusionary law ever enacted, and includes provisions that explicitly exclude communists, or those affiliated with organizations that advocated, wrote, published, distributed, and taught world communism.
George Wang:
The President at the time, Harry Truman, was vehemently against the McCarran-Walter Act and called its ideological exclusion provisions, "Thought control," and, "Inconsistent with our democratic ideals." When the bill hit his desk, he actually vetoed it. In his veto statement, he forcefully wrote, "Seldom has a bill exhibited the distrust evidence here for citizens and aliens alike."
But Congress voted to override his veto and enact the law anyway. The act was used to turn away many prominent political and cultural figures, including the novelist, Gabriel Garcia Marquez, the poet, Pablo Neruda, and the playwright Dario Fo. In fact, this law was practically an annual source of scandal. Mexican writer, Carlos Fuentes was denied entry in 1962 and banned from the US for 30 years due to suspected communist ties.
Carlos Fuentes:
I asked once, "Do you ever get out of that list? Can I ever get out?" And said, "No, no, no." I said, "Even hell has its limits. Even in hell, you're promised that one day everybody will go to purgatory or to heaven, hell is not forever. Surely the denial of a visa is not forever."
George Wang:
Unsurprisingly, the McCarran-Walter Act was eventually put to the test a few decades later.
Julia Rose Kraut:
So in 1969, a Belgian Marxist economist and journalist named Ernest Mandel is invited to a number of American universities and colleges to speak on their campuses, including Amherst, Princeton, Columbia, MIT, and Stanford.
George Wang:
When Mandel applied for a visa, his application was denied. That was especially strange considering this wasn't his first visit to the United States.
Julia Rose Kraut:
According to correspondence with a US consular official in Belgium, unbeknownst to Mandel, he's technically excluded under a section of the McCarran-Walter Act, barring those who advocate, write, or publish doctrines of world communism. But in his previous trips, he had been issued a waiver of inadmissibility and that's how he was able to enter the United States.
George Wang:
Waivers needed to go through the Secretary of State and the Attorney General.
Julia Rose Kraut:
The State Department said that it had not recommended the waiver because it claimed Mandel had violated the restrictions on the conditional visa he received in 1968.
George Wang:
Apparently, on one of Mandel's earlier visits, he had strayed from his stated itinerary. That year, 1968, was the year of a seven-week-long mass uprising in France called the Student Protests.
Mandel was visiting New York at the time, and during that visit, he went to a cocktail party, a party where the hosts happened to be raising money for the legal defense of those demonstrators in France. Going to that party, the government said violated the terms of Mandel's visa.
Julia Rose Kraut:
Mandel insisted that he was not involved in the fundraising, had no idea that he had been traveling under a conditional restricted visa.
George Wang:
He even told the government more or less that he'd behave next time. The State Department was convinced, but remember, he also needed the Attorney General.
Julia Rose Kraut:
But Attorney General John N. Mitchell refuses to grant it, and this results in a public rift between the state and justice departments where Secretary of State William P. Rogers, while discussing the Mandel case, asks, "Why should we be afraid of this man and his ideas?"
George Wang:
Why indeed? Julia actually tried to find out the answer.
Julia Rose Kraut:
The Justice Department also says in documents I found through Freedom of Information Act, that it doesn't want to import any more trouble than it has, citing Mandel's exclusion from France and support of the May protests, but really doesn't want to import any more trouble or speakers to talk on college campuses.
George Wang:
Ah, so there it is. It's all about the government's fear that Mandel's ideas from abroad would stir up trouble at home.
Julia Rose Kraut:
The Nixon administration was using ideological exclusion as a tool of political repression, and there is an outcry. There's an outcry from academics, students, public, members of the press, and they reiterate arguments made in the 1950s that this is a form of censorship. It's damaging to United States. It's making the United States look fearful. It's a threat to academic freedom. It undermines American values and principles, and it makes the nation seem fearful of ideas and a lack of confidence in their own.
George Wang:
But challenging his exclusion was no easy feat for Mandel. John Turner's case at the start of the century establish the precedent that foreign visitors seeking admission to the country lack the ability to vindicate their own First Amendment rights in court. Mandel could not sue on his own behalf, so his lawyers got creative.
Julia Rose Kraut:
What they do is they use the recent legal precedent establishing the right to hear as well as the right to receive information and has the American professors inviting Mandel to college campuses challenge the exclusion as a violation of their First Amendment right to receive information and to hear. So this is revolutionary.
George Wang:
Mandel's argument was not that the First Amendment protected his own right to speak, but that it protected the professor's right to hear from foreign visitors. The argument was clever and inventive and it ended up working, sort of.
Julia Rose Kraut:
Okay, so we have a decision by Justice Harry Blackmun, and the good news is that those within the United States can claim they are harmed by the exclusion. All right, so this is a pathway to challenge exclusion. They've hit it, they figured it out. Here's the bad news. The professors lose and Mandel is excluded.
George Wang:
Once again, the court calls upon the plenary power doctrine and defers to the government because the court considers Mandel's case to be an immigration issue, not a free speech issue, but Justice Blackmun did poke a tiny hole in the plenary power doctrine.
Julia Rose Kraut:
They can't just exclude without a reason, so the government is required to issue a facially legitimate and bona-fide reason for the exclusion, and he finds that that cocktail party stray from the itinerary is facially legitimate and a bona-fide reason.
George Wang:
So Mandel loses, but he doesn't go down without sounding off.
Julia Rose Kraut:
He thanks all of his lawyers and all who advocated on his behalf. And then he says, "No revolutionary change was ever prevented by trying to suppress free circulation of ideas. If anything, such measures of suppression always in the end hasten radical social change rather than stopping it."
John Lennon:
Peace on earth. That implies no violence, no fear.
George Wang:
Another decade later, another immigrant, a certain Beatle would find himself in something of a similar position. John Lennon, rock star, artist, dreamer was admitted to the US in 1970 under a waiver of inadmissibility a few years earlier, he had been convicted in England of possessing cannabis, which meant that he was excluded from the US under the McCarran-Walter Act unless he was granted a waiver.
Unlike with Mandel, the government says, "Yes, Lennon can come," but his time in the US ended up raising some eyebrows.
Julia Rose Kraut:
He is an outspoken critic of the Vietnam War and the Nixon administration with his wife Yoko Ono. He participates in rallies, TV interviews, the recording of Give Peace A Chance, and then in 1972, citing the drug conviction, the Justice Department refuses to renew Lennon's visa and orders him to leave the United States. And he says, "The real reason that I'm being ordered deported is because I'm a 'peacenik'."
George Wang:
Lennon said as much when he went on The Dick Cavett Show that year to talk about the case.
John Lennon:
They're after us because we talk about peace.
Yoko Ono:
Outspoken because we stand for something.
John Lennon:
Because we want peace. We've said the same thing for two years different one way or another, and we believe in it.
Yoko Ono:
The only thing we promoted was peace and love.
Julia Rose Kraut:
And so Lennon hires a lawyer to challenge this deportation order and that lawyer files a Freedom of Information Act to find out what the real motivations are about this strange deportation order. And this is a perfect example of a retaliatory or selective deportation.
George Wang:
Before 1972, Lennon had not been a priority for deportation, but that year something changed. As President Nixon was running for re-election, Republican Senator Strom Thurmond sent a letter to the Justice Department, urging the Attorney General to move Lennon up the list.
Julia Rose Kraut:
Lennon is affiliated with the new left groups and attracts young voters, and the voting age has actually been lowered now to 18, and there's concern about Lennon's popularity among the young and that he's going to help the new left, and this is going to thwart the re-election of Nixon. And so as a countermeasure, Strom Thurmond proposes, why don't you deport Lennon?
George Wang:
Nixon won re-election, but then Watergate happened, so he got busy with other things. Meanwhile, Lennon was still challenging his deportation order in court after Nixon resigned in 1974. And a year later, an appeals court found that Lennon's drug conviction didn't technically justify his exclusion.
Julia Rose Kraut:
Furthermore, it acknowledges that this is selective deportation, acknowledges the motivations when Lenin's lawyer produces all of this evidence, and the Second Circuit Court of Appeals says, will not condone selective deportation based on secret political grounds. And it's clear that the Nixon administration was trying to silence political opposition, which would be squarely protected under the First Amendment.
George Wang:
Lennon was able to get his green card another year later in 1976.
TV Anchor:
And this was what it was all about. Finally, after four and a half long years of struggle, John Lennon got his card, a green card, saying that he's now a permanent resident of the United States.
John Lennon:
Right on brother.
George Wang:
The stories we've discussed so far span decades and they involve everyone from anarchists to communists to peaceniks. The thread that ties all these people together: they wanted to share ideas that the government at the time viewed as dangerous or subversive. Not even the world-famous John Lennon was safe.
These tools of ideological exclusion have unfortunately not been relegated to the dustbin of history. In fact, they've found renewed significance in the years following the attacks on September 11th, 2001.
Geroge W. Bush:
Today we take an essential step in defeating terrorism. With my signature, this law will give intelligence and law enforcement officials important new tools to fight a present danger.
George Wang:
Just six weeks after the attacks, Congress passed the infamous USA PATRIOT Act. The so-called War on Terror that followed fundamentally altered American life for citizens and non-citizens alike. It ushered in an era where the government freely traded off our most basic civil liberties for the fantasy of increased security. It was during this time that the Department of Homeland Security was established along with one of its most important and powerful component agencies, US Immigration and Customs Enforcement, ICE.
Geroge W. Bush:
The new department will analyze threats, will guard our borders and airports. The Department of Homeland Security will focus the full resources of the American government on the safety of the American people.
George Wang:
The newfound focus on perceived terrorist threats naturally led to a reinvigoration of the government's practice of ideological exclusion. During the Bush administration, the State Department routinely denied visas to foreigners whose political views it disfavored. This time, the primary targets of exclusion were Arab and Muslim intellectuals and scholars, especially those who criticized American foreign policy. This included Adam Habib, a South African scholar and expert on democracy, race, and social movements.
Habib had frequently traveled to the US and had even earned his Ph.D. from The City University of New York. He also happened to be a vocal critic of US foreign policy. In 2006, he was invited to come to the US to meet with members of a number of prominent institutions including the NIH, the CDC, the World Bank, and Columbia University. But when he arrived at JFK Airport in New York, the State Department revoked his visa and refused to let him into the country. He was led back to an aircraft by armed guards and deported.
Adam Habib:
Well, the question is between the last time I'd come in 2004 and 2006, what had changed and the only thing that I can imagine was the Iraq War. There were demonstrations in South Africa. I was opposed to the war. I addressed those demonstrations. I did say very clearly that I thought it was a wrong thing.
George Wang:
The State Department even extended the exclusion to Habib's wife and two kids. It later told Habib that he was being barred from the country because he was "engaged in terrorist activities". But the government never explained the basis for that accusation.
The ACLU almost immediately challenged Habib's visa denial on First Amendment grounds. But it wasn't until 2010, four years later, that Habib was finally able to enter the country again. He was just one of dozens of scholars, artists, and activists who are barred from the US during the Bush administration.
Years later, when Donald Trump became President in 2017, he did not need to rely on any new laws to begin excluding people from the country. All of that groundwork was more or less already there.
Donald Trump:
Nobody has any idea where these people are coming from, and we know they come from prisons. We know they come from mental institutions and insane asylums. We know they're terrorists. It's poisoning the blood of our country.
George Wang:
With his hands on the levers of power, Trump oversaw a dramatic expansion of exclusionary immigration policies just like he promised on the campaign trail. His infamous Muslim ban, which targeted travelers from Muslim-majority countries, was carried out using powers invested in the President under the McCarran-Walter Act.
Donald Trump:
The immigration laws of the United States give the President powers to suspend entry into the country of any class of persons. Now, any class, it really is determined and to be determined by the President for the interests of the United States, and it's as he or she deems appropriate.
Julia Rose Kraut:
Soon after, almost immediately, the travel ban is implemented and there's chaos.
George Wang:
Historian and lawyer Julia Rose Kraut.
Julia Rose Kraut:
So there's chaos in the airports. There's a question about how it's going to be implemented. What about people in the air? Are they going to now be banned if you have invalid visas. There's a rush. There's a rush of lawyers to the airports, there is rush of protesters protesting this ban to the airports.
Protestors:
Fuck white supremacy! No ban! No registry! Fuck white supremacy!
Julia Rose Kraut:
There's a rush to the courthouses to try to get injunctions. I remember this well and there's terrible uncertainty about what's going to happen and terrible uncertainty from those within the United States about their loved ones, those outside of the United States, those who want to leave, will they be barred trying to come back and separation of families too in terms of this ban.
George Wang:
The travel ban was almost immediately challenged in court and it went to the Supreme Court in a case called Trump V. Hawaii. The court split 5-4 along ideological lines and upheld the ban. And what the court basically said is that it needed to step aside because this was an immigration matter.
Julia Rose Kraut:
What you have is the application of the plenary power doctrine once again. The courts are going to defer to the judgment of President Trump.
George Wang:
Whether the ban was ideologically motivated didn't factor into the court's decision at all, even though the President's intentions weren't exactly a mystery to anyone paying attention. Instead, the court reaffirmed the president's sweeping authority to shape immigration policy in exclusionary ways.
For the rest of his term, Trump used those powers to create a culture of intimidation and fear among those he targeted. Ravi Ragbir certainly took notice.
Ravi Ragbir:
This is like the Katrina that is going to overtake any wall that is going to be built because this seed that is love is going to make that change. But there are hundreds of people going in there at the moment. We need to protect them. We need to protect each other.
George Wang:
This is Ravi speaking to a crowd outside of ICE headquarters in Lower Manhattan in 2017, right before walking into an appointment with ICE officers. As always, he didn't come alone. By this point, he had been under a stay of removal for six years and his check-ins with ICE had diminished from a few times a week to a few times a year.
Can you tell me about what happened during your scheduled check-in with ICE on March 9th, 2017? Did it feel different from your prior check-ins?
Ravi Ragbir:
Of course it did. This was the first check-in after the administration had changed. So of course it was different. We knew that. This was the time when people were told by the deportation officers, "Hey, you need to come with a passport and a ticket. We are going to deport you tomorrow," whatever. And people were walking in with passport and tickets. So we knew this wasn't going to be an easy check-in.
George Wang:
Hundreds of people crowded Federal Plaza, the imposing Lower Manhattan building that houses the federal immigration court. Ravi brought many people inside with him, including a handful of elected officials. He thinks that made a difference. ICE declined to deport Ravi that day, but told him to come prepared with a passport and a ticket next time.
As the year wore on, Ravi knew people who weren't so lucky who did get detained and deported. According to agency data, ICE arrests shot up 30% that year. Newly emboldened agents surprised people at work, at court, in places that had previously been considered off-limits for immigration arrests.
Ravi feels certain that agents were looking for opportunities to do the same to him.
Ravi Ragbir:
My lawyers, my friends, my community, they started walking with me when I went from the office to my home and back. And that night when we knew they were looking for us, people went out on the streets and saw ICE vehicles around the office and around my home. So my friend, he went to see what was happening at my home, and when he took all the keys, he heard the walkie-talkie squawking. He heard a lot of that, right? So he knew that there were vehicles there. And when I was at the office, my attorney, she's an awesome person, right? She was pregnant, nine months pregnant, and she went on the street looking and asking, "Are you my Uber," to see who it was. And when you look down, you will see the ICE license plate on the floor. Oh yeah, we know you're ICE.
George Wang:
Despite living in this climate of fear, Ravi continued to show up for his ICE appointments with his crowds of friends, family, clergy, and fellow activists in tow. After that March, check-in, he remembers someone asking him why.
Ravi Ragbir:
I said if I am not willing to take that risk, but all the support and all the things that we have done, if I'm afraid to do that, how can other people be willing to stand up? You have to set the standard. You have to be walking out here. Yeah, I could get deported, but I know that I have done what I needed to do and if someone else gets inspiration from that, that could trickle down and affect others and be able to help others stand up also. So I went in there fully aware what could have happened, which it did happen.
George Wang:
January 10th, 2018, Ravi was directed to a room on the 10th floor of the ICE building. Only his wife and his attorney were allowed to go in with him. No one would answer any questions.
Ravi Ragbir:
The assistant director came in and he said, "This is it. You're going. You're going."
George Wang:
Everything moved really quickly after that. Ravi passed out, ICE agents called an ambulance that had to push through a crowd of demonstrators to make it away from Federal Plaza. Arriving at the hospital, agents told Amy, Ravi's wife, to get out and then sped away. Ravi was in detention in Florida by that night.
He could have been back in Trinidad the next day, but for the help of his lawyer. A week later, Amy published an op-ed about the whole experience in the New York Times. An immigration attorney herself she wrote, "I know how deportation tears at the fabric of families and communities, but now I am inside this nightmare personally, and it hurts more than I ever thought it would." The op-ed caught the eye of a lawyer who helped Ravi sue ICE.
Ravi Ragbir:
And he said, "This is a First Amendment issue." And he reached out to them. I was in detention already, right? And he reached out to them and he said, "Do you want me to take this case?" And obviously we said, "Yeah, take it," right?
George Wang:
Ravi and his legal team alleged that the agency's attempt to deport him was part of a broader pattern of retaliation against immigrants who freely exercise their right to free speech. His case went up before the Court of Appeals for the Second Circuit.
Ravi Ragbir:
And the appeal court said, "Yes, you have a right. There's definite retaliation here, and you have a First Amendment protection right."
George Wang:
As the litigation progressed, Ravi learned why exactly ICE had been so hell-bent on targeting him.
Ravi Ragbir:
In their documents that they submitted the court they said they didn't like how I described them as Nazis and all of these things, right? They wrote that I was very loud and they were very annoyed with me. And a lot of what came out on the court papers is that they were surveilling me regularly.
So the director even talked about the fact that he knew where I lived. He knew where I walked to get to the train, my route to go to the office. He even said I bebopped. I have no idea what bebopped means, right? But I bebopped. I wears fedora. He knew the fedora. He was given details that was shocking to everyone.
George Wang:
These admissions made it all the more obvious that it was Ravi's speech and activism that painted a target on his back for deportation. The Second Circuit agreed. It called ICE's conduct outrageous and explained that, "To allow this retaliatory conduct to proceed would broadly chill protected speech among not only activists, subject to final orders of deportation, but also those citizens and other residents who would fear retaliation against others."
We at the Knight Institute filed an amicus brief in support of Ravi to make clear that the government cannot wield the threat of deportation as a tool to suppress the speech of non-citizens. Forcing immigrants to choose between expressing their opinions or remaining in the country violates the most basic guarantees of the First Amendment. Eventually, the government offered Ravi a settlement which included a three-year deferred action. In 2022, he chose to accept.
Ravi Ragbir:
The end of that three years is this year, 2024. So after 2024, I'll be back in the position as of 2018, and therefore they can take me away at my next check, which is in January 2025.
George Wang:
What happens after that?
Ravi Ragbir:
What happens after that? They could use that final order to shackle me and deport me at any time after the deferred action. So what happens afterwards is that every day I would be living like how I used to live when I got released from detention, not knowing what tomorrow will bring. It's not something you should be living true. And this is just not just about me, George. This is not about only what I am living and what Ravi... No, this is about every single immigrant. This is about every single immigrant who is under the threat of deportation, who lives under that. We have thousands of people. We have millions of people.
George Wang:
That's why after everything Ravi believes his case against the government was worth it.
Ravi Ragbir:
When you looked at what was our objective in this lawsuit, obviously to call out the retaliation, and it was good that we call it retaliation because this is what fascism is about: retaliation against people who speak out. If it's in the court and it's public documents, it can be used by everyone.
George Wang:
Thanks to Ravi's lawsuit, people now know the truth about ICE's attempts to silence activists with the threat of deportation. What happened to him shows us what follows when we allow the government to use its immigration powers to target people for expressing so-called dangerous ideas. Historian Julia Rose Kraut doesn't mince words.
Julia Rose Kraut:
Ideological exclusion is a form of censorship and it violates the First Amendment and it can lead to a chilling effect on free speech and association causing individuals to suppress their beliefs and expressions and to preclude their associations due to fear and intimidation and their expressions and beliefs are not actual national security threats.
George Wang:
Our country's long and troubled history with ideological exclusion illustrates the vast and largely unchecked power the government wields in immigration enforcement. Even when its authority raises serious free speech concerns, it is one of the reasons the border is often viewed as a gray area, even an exception when it comes to fundamental constitutional protections.
These practices only become more concerning when new technology comes into play. In a world mediated by electronic devices, social media and algorithms, the very concept of the border itself is being reshaped as we speak. That has enabled the government to employ new and even more expansive forms of censorship and surveillance designed to silence viewpoints and suppress dissent.
Julia Rose Kraut:
There's a warning sign that we received in 2019 about this, and this is Ismail Ajjawi, a Palestinian student from Lebanon arriving at Boston Logan International Airport in late 2019 on his way to begin his freshman year of college at Harvard University. And he carried a valid visa with him and Ajjawi was detained and questioned for a number of hours by US Customs and Border Protection, and his phone was searched. And subsequently his visa was revoked and he was deemed inadmissible due to political views. Opposing the United States are critical of the United States, not posted by him, but posted on one of his friends lists. And this is a perfect example of guilt by association through the use of social media.
George Wang:
Needless to say, the framers didn't have smartphones or social media in mind when they drafted the First Amendment. And as technology continues to develop, sometimes our rights get left behind. The government has taken advantage of this gap between our constitutional protections and new technologies to collect data on and engage in censorship of citizens and non-citizens alike.
But new threats also mean new opportunities for resistance. We at the Knight Institute are dedicated to defending the freedoms of speech and the press in the digital age. Over the next few episodes, we'll explore the changing role of the border as a location, justification, and pretext for government surveillance and censorship, and how we are fighting back.
On the next episode of Speech & the Border, social media. Love it or hate it, so much of what we do nowadays is online. But visa applicants know better than most that nothing they do online is truly private. Immigration authorities have been collecting their social media handles since 2019 as part of extreme vetting policies that are still in effect.
Faiza Patel:
Once you give the social media handle to the government, it's not just going to keep it, right? It's going to use it in order to find out stuff about you.
George Wang:
The dangers of government social media surveillance. I am George Wang. I'm a lawyer at the Knight First Amendment Institute. Thank you for listening to this episode. Speech & the Border is co-produced by Ann-Marie Awad and Kushal Dev. Our executive producer is Candace White. Our engineer is Patrice Mondragon. Creative direction from Carrie DeCell. Fact-checking by Roni Gal-Oz and Teddy Wyche. The art for our show was designed by Nash Weerasekara. Our theme music was composed by Grayton Newman with additional music from Epidemic Sound. Views on First is available on Apple, Spotify, and wherever you listen to podcasts.
Please subscribe and leave a review. We'd love to know what you think.
To learn more about the Knight Institute, visit our website KnightColumbia.org. That's Knight with a K, and follow us on social media. Special thanks to Hanger Studios. Bye now.
