Carrie DeCell is a staff attorney at the Knight First Amendment Institute. The Institute is currently litigating a Freedom of Information Act (FOIA) request that seeks records related to the government’s consideration of a person’s speech, beliefs, or associations in immigration admission or removal decisions. The records released so far and the case documents are available on the case page at the Knight Institute’s website.
What prompted this FOIA request, and what’s your goal in the litigation?
This FOIA request came in the aftermath of the executive orders President Trump issued shortly after taking office that called for the development of what he called an ‘extreme vetting’ program. The language of the executive orders suggest that he wanted that to include some sort of ideological vetting. His statements on the campaign trail or shortly after taking office about only wanting to let in people who ‘love our country’ seemed swept into these early executive orders. We issued a request to obtain some more information about the development of that program with respect to ideological vetting—the exclusion or removal of people based on their speech, their beliefs, or their associations.
We looked beyond the executive orders themselves to try to find the statutory authority that the government might invoke to support any new ‘extreme vetting’ policies, and identified two provisions in the Immigration and Nationality Act (INA) that we’ve dubbed the “endorse or espouse” provision and the “foreign policy” provision. The endorse or espouse provision provide that individuals who “endorse or espouse terrorism” may be excluded from the country. The foreign policy provision is much broader. It gives authority to the government to determine that admitting some particular person into the United States would pose significant foreign policy consequences.
We wanted to obtain information not only about the directive that the White House had given the agencies, but also information about their history of relying on these two provisions in the INA to exclude people on the basis of what, in the United States, would be First Amendment protected activity. This request does have a faint lineage in [Jameel Jaffer, director of the Knight Institute]’s prior work at the American Civil Liberties Union, where he litigated the Tariq Ramadan case, AAR v. Napolitano, where it seemed clear that Ramadan had been denied a visa based on his reported connection with what the government had deemed a terrorist organization.
That challenge was brought by associations in the United States who wanted to hear from this particular person, so it implicated not only Ramadan’s own speech interests, which may or may not be protected under the constitution, since he’s a non-citizen residing outside of the United States, but also the First Amendment protected listener’s interests of these US based associations and their members.
What have you found so far?
Unfortunately, the documents we have received so far have been heavily, heavily redacted. The most interesting information we have received is that the government put together a memo addressing First Amendment concerns relating to the endorse or espouse provisions. All we have is the title of the memo—they have redacted the entirely of the memo itself, on the grounds that it is privileged under FOIA. [FOIA exemption 5 permits the government to redact information that fall under a set of specific privileges.] We’ve brought challenges to those redactions now.
How are you arguing those challenges?
It depends on the document. For instance, the agencies describe many of the records as “draft” records, and so protected by the deliberative process privilege, which protects pre-decisional information. But, in the case of this “First Amendment concerns” memo, we have agency emails that refer to a final memo, so we assume that one of the records we received was the final version of that memo and so would not qualify as pre-decisional.
You talked about the statutory authority for excluding. Is there a way to challenge those grounds?
You could bring a facial challenge to the provisions by arguing they are overbroad—that they would apply to some group of people who the government doesn’t have an interest in excluding or could not constitutionally exclude from the country. That would be a tricky challenge to bring, in part because it’s not clear that the constitution applies to individuals who are not U.S. citizens and live outside of the United States and who do not have substantial connections to the United States. But, with respect to particular individuals, you may make out a case under the framework set out in Kleindienst v. Mandel, which defines the contours of a doctrine called the doctrine of consular nonreviewability. That doctrine affords a lot of deference to the government in making admissions decisions, but nonetheless says courts can review and potentially overturn a decision if the government’s reason isn’t “facially legitimate and bona fide.” The Tariq Ramadan case was brought under Mandel, and the Court ultimately held it wasn’t clear the government had that kind of reason.
Do you have concerns about the visa process itself?
That’s part of what we want to get more information. It’s not clear to us at this point what these extreme vetting policies are. Those are the records we requested, and we’re still hoping to receive those records. If the government were giving individual agents or consular officials broad discretion to decide, for example, who raised foreign policy consequences for the United States, then we would take issue with that discretion. It seems to me that if agents or consular official had too broad discretion in making these decisions, it would result in a lot of arbitrary or discriminatory decisions that could run afoul of the Constitution in various ways.