The Trump administration believes some noncitizens may not even have first amendment rights. And it’s turning that legal fantasy into a reality by making immigration judges choose between the constitution and their jobs.
Last week, the judge who rejected the deportation of Rümeysa Öztürk, the Tufts doctoral student whose only offense was co-writing an op-ed critical of Israel, was fired after upholding the law. Judge Roopal Patel rejected the administration’s argument that expressing views shared by millions of Americans disturbed by the carnage in Gaza – sometimes including Donald Trump himself – equates to supporting terrorism and antisemitism.
Also let go by the Department of Justice, which hires and fires immigration judges, was Judge Nina Froes. She terminated the removal case against Mohsen Mahdawi over his involvement in campus protests at Columbia. The secretary of state, Marco Rubio, perplexingly argued, in a memorandum supporting the removal, that Mahdawi’s antiwar activities interfered with the administration’s purported goal of ending the war in Gaza peacefully.
But while Froes and Patel pack their bags, Blake Doughty, an immigration judge in Atlanta, remains on the bench. And his recent opinion ordering the deportation of Ya’akub Vijandre – a Daca recipient, Red Cross-trained first aid responder, activist and photojournalist – may have secured his seat on the bench for the foreseeable future. There’s precedent: the Louisiana immigration judge Jamee Comans was promoted to acting assistant director of the office of policy at the Executive Office for Immigration Review months after ordering the pro-Palestine activist Mahmoud Khalil removed.
The constitutional cluelessness reflected by Doughty’s order is appalling. In other words, it’s the exact order the Trumps and Stephen Millers of the world probably wish Patel and Froes had written, and it’s the kind of legal analysis they hope to see from judges economically incentivized to deport journalists, writers and activists who exercise their free speech rights.
Vijandre drew the administration’s ire through posts on social media expressing support for defendants known as the “Holy Land Five” and others convicted on terrorism-related charges. The Five were leaders of the Holy Land Foundation, which was the largest Muslim charity in the US before the government designated it a terrorist organization for giving money to organizations it claimed were tied to Hamas. There was no evidence the foundation’s money bankrolled terrorism or violence.
Vijandre believes they were wrongly convicted and therefore has supported their legal defense. He has advocated for their right to due process and better prison conditions. Doughty found this amounted to material support for terrorism.
It’s like claiming The Innocence Project supports murder by advocating for convicted murderers to be freed. In what universe is believing someone didn’t do what they’re accused of doing equivalent to supporting what they’re accused of? Doughty did not point to a single post by Vijandre that actually supported alleged terrorism. If he had, that wouldn’t have cured the constitutional issues with his order, but we don’t even need to go there, because he didn’t.
Here’s Doughty’s convoluted reasoning in his own words: “Given the respondent’s acknowledged ignorance of the specific criminal convictions [of the Holy Land Five], the Immigration Court reasonably concludes respondent’s belief in their innocence is based on ideological affinity with HLF rather than a factual understanding of the criminal conduct.”
Under this logic, the first amendment is only for subject matter experts. You can’t defend someone unless you have full command over the nuances of their case – and if you don’t, your advocacy only proves your extremism.
But plenty of highly informed people have criticized the Holy Land Foundation prosecution. A 2022 letter calling on then president Joe Biden to pardon the Five was signed by more than 70 lawyers, activists, rights organizations and others. Human Rights Watch and Amnesty International have, like Vijandre, raised concerns about the treatment of Aafia Siddiqui, who was convicted in 2010 of attempted murder after allegedly attacking US officers in Afghanistan.
That means agreement with the world’s leading human rights organizations is now evidence of support for terrorism.
Of course, opinions not held by scores of scholars are also constitutionally protected, whether or not a judge agreed with them. But Judge Doughty’s order nonetheless dismisses Vijandre’s credibility and first amendment rights with condescending pseudo-psychological pronouncements that have no legal significance.
“The respondent’s worldview is informed by extremist ideology to such an extent that he no longer has the ability to provide reliable or credible factual statements,” the ruling states matter-of-factly. Doughty goes on to opine, based on exactly nothing, that Vijandre is “so heavily influenced by fringe online elements” he lacks a “meaningful grasp of truth regarding terrorism”.
The same judge who thinks Vijandre’s résumé doesn’t qualify him to have an opinion apparently sees himself as perfectly competent to serve as the arbiter of objective truth and conduct unlicensed psychoanalysis. I’d say he shouldn’t quit his day job, but he actually should.
Doughty’s reasoning is even more dangerous under the broadened domestic terrorism guidelines of NSPM‑7, which, it seems, the Trump administration can’t wait to abuse. Will the next immigrant who questions, for example, the convictions of alleged members of so-called Antifa for wearing black or possessing zines be subject to deportation? How about someone who merely opposes Trump’s immigration enforcement actions, which, ICE agents have claimed, earns them a spot on a domestic terror watchlist?
Or, under a future administration, how about someone who defends Trump’s pardons of convicted participants in the January 6 attack? There’s no reason to think the powers Trump claims to fight domestic terror won’t be used by other presidents, regardless of party. We saw a preview when the Obama administration adopted much of Bush’s global war on terror playbook for everything from mass surveillance to targeting journalists and whistleblowers to covert drone strikes in the Middle East. Those in charge rarely relinquish powers handed to them by their predecessors.
And while social media was Vijandre’s medium, nothing in Doughty’s ruling exempts journalists, commentators or opinion writers from similar treatment. Öztürk, of course, was abducted by masked ICE goons over an op-ed, while journalists like Mario Guevara, who was deported to El Salvador, and more recently Estefany Rodríguez have allegedly been targeted due to their coverage of Trump’s immigration policies and protests against them. The British journalist Sami Hamdi was thrown in ICE jail amid a speaking tour.
A recent email to law students at conservative Liberty University reportedly said that, in order to work for Trump’s justice department: “The two most important requirements are you MUST be aligned politically with President Trump and his administration and you must be willing to work hard … GPA is not a strong factor.” The administration has similarly lowered hiring standards for immigration judges specifically.
It’s a hiring policy designed to recruit more judges like Doughty and fewer like Patel and Froes. And in case any of thoslaw-over-loyalty judges slip through the cracks and acknowledge that immigrants are entitled to have opinions, now they’re on notice.
Seth Stern is the chief of advocacy at Freedom of the Press Foundation (FPF) and a first amendment lawyer
