Immigration – ‘Ideological-deportation policy’

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Where a complaint has been filed challenging an alleged federal policy of arresting, detaining and deporting non-citizens solely upon their pro-Palestine or anti-Israel political speech, the defendants’ motion to dismiss should be denied with respect to two First Amendment claims, as the plaintiffs have plausibly alleged the existence of both an ideological-deportation policy targeting protected political speech and a more informal campaign of censorship through threats.

“… This case raises the issue of whether certain Public Officials can enforce a policy of arresting, detaining and deporting non-citizens who are otherwise here legally based solely upon their pro-Palestine or anti-Israel political speech. Here, the American Association of University Professors (the ‘AAUP’), the AAUP-Harvard Faculty Chapter, the AAUP at New York University, the Rutgers AAUP-American Federation of Teachers, and the Middle East Studies Association (collectively, ‘the Plaintiffs’) sue Secretary of State Marco Rubio in his official capacity, the Department of State, Secretary of Homeland Security Kristi Noem in her official capacity, the Department of Homeland Security, Acting Director of U.S. Immigration and Customs Enforcement Todd Lyons in his official capacity, President Donald J. Trump in his official capacity, (collectively, ‘the Public Officials’), and the United States of America based on the Public Officials’ alleged policy of targeting noncitizens who engage in pro-Palestinian or anti-Israel speech and association for arrest, detainment, and deportation (the so-called ‘ideological-deportation policy’). …

“The Plaintiffs bring four counts: (1) a claim based upon the First Amendment to the Constitution, challenging the ideological-deportation policy itself; (2) a claim based upon the First Amendment to the Constitution, challenging the Public Officials’ threats to punish noncitizens’ constitutionally protected speech;, (3) a claim based upon the Fifth Amendment to the Constitution, alleging that the ideological-deportation policy invites arbitrary and discriminatory enforcement; and (4) a violation of the Administrative Procedure Act, 5 U.S.C. §706(2)(A)-(C), also based on the ideological-deportation policy. … The Plaintiffs seek declaratory and injunctive relief, and an award of costs and attorneys’ fees. …

“The Public Officials move to dismiss on the grounds that: (1) this Court lacks jurisdiction because the Plaintiffs seek class-wide relief against immigration enforcement actions, which is barred by two provisions of the federal immigration laws; (2) the Plaintiffs lack standing because they allege only incidental harms based on the possible choices of third parties in response to a vaguely defined policy, rather than the concrete and imminent harm that constitutional standing requires; (3) the Plaintiffs’ First Amendment claims fail because this Amendment applies differently in the immigration context, and the Plaintiffs challenge an ill-defined policy that is really a generic political initiative, which challenge is foreclosed by the rule against selective deportation claims and in any case must be dealt with on an individual basis; (4) the Plaintiffs’ Fifth Amendment claim fails because only statutes can be challenged as unconstitutionally vague; and (5) the Plaintiffs’ APA claim fails because, given the ill-defined nature of the policy and the exclusive administrative scheme through which removal challenges must be channeled, the Plaintiffs point to no final agency action for which there is no other adequate remedy.

“For the reasons stated below, the motion to dismiss is allowed in part as to count three, and denied in part, as to counts one, two, and four. …

“On balance, drawing all factual inferences in their favor, at least the AAUP and [the Middle East Studies Association (MESA)] have associational standing to challenge the allegedly objective chill on their noncitizen members’ speech. …

“This Court rules that at least MESA has organizational standing to sue based on its own injuries. …

“Although this case raises novel First Amendment issues and the precise scope of the ideological-deportation policy challenged by the Plaintiffs is not yet clear, at the motion to dismiss stage the Plaintiffs’ First Amendment claims survive. …

“This Court rules that the Plaintiffs have plausibly alleged the existence of both an ideological-deportation policy targeting protected political speech and a more informal campaign of censorship through threats. The motion to dismiss counts one and two is therefore denied. …

“Because Due Process-based vagueness challenges have not been extended beyond the statutory sphere or, at most, to written rules and regulations, the motion to dismiss count three is allowed. …

“Particularly given that this Court must draw all reasonable inferences in the Plaintiffs’ favor at this stage, including ‘inferences that support the existence of an official policy,’ Amadei v. Nielsen, 348 F. Supp. 3d 145, 165 (E.D.N.Y. 2018), the Plaintiffs have plausibly alleged final agency action. …

“The Plaintiffs have also plausibly argued that their harms are not otherwise redressable than through the APA. …

“For the reasons stated above, the Motion to Dismiss is allowed in part as to count three and denied in part as to counts one, two, and four.”

American Association of University Professors, et al. v. Rubio, et al. (Lawyers Weekly No. 02-249-25) (68 pages) (Young, J.) (Civil Action No. 25-10685-WGY) (April 29, 2025).

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