Immigration Law and First Amendment Violations in Deportation Proceedings

By Esther Claudette Gittens

Immigration law in the United States has a long and complex history, particularly concerning when lawful permanent residents (LPRs), also known as green card holders, may be placed in deportation (removal) proceedings or subjected to expedited removal. One of the more controversial areas of immigration enforcement involves cases where an LPR allegedly violates the First Amendment. This article explores the historical evolution of immigration law as it relates to First Amendment violations, the circumstances under which an LPR may face deportation or expedited removal, and notable legal cases that have shaped this issue.

The Evolution of Immigration Law and Deportation Proceedings

Early Immigration Laws and Deportation Policies

The United States first began regulating immigration with the Naturalization Act of 1790, which restricted citizenship to “free white persons.” However, the first real federal immigration control came with the Page Act of 1875 and the Chinese Exclusion Act of 1882, which targeted specific racial and national groups. These early laws focused more on exclusion rather than deportation.

The concept of deportation began to develop in the Immigration Act of 1891, which provided grounds for removing noncitizens who became “public charges” or committed crimes of moral turpitude. Later, the Immigration Act of 1917 expanded deportable offenses and added provisions targeting political radicals, such as anarchists and those advocating the violent overthrow of the U.S. government.

During the Red Scare (1919-1920), deportation was heavily used as a tool to remove immigrants suspected of having radical political beliefs. This period saw the Palmer Raids, in which hundreds of immigrants were arrested and deported for suspected communist ties, even without strong evidence of criminal wrongdoing.

The McCarran-Walter Act and Political Deportations

The Immigration and Nationality Act (INA) of 1952, also known as the McCarran-Walter Act, codified much of the previous immigration law and expanded the government’s power to deport individuals for ideological reasons. This law was used extensively during the Cold War to deport individuals suspected of communist affiliations.

For example, Swiss-born political activist Ernst Thälmann was nearly deported under these provisions, and Greek-born anarchist Emma Goldman was deported for her political beliefs in the early 20th century.

The Supreme Court, in cases such as Harisiades v. Shaughnessy (1952), upheld the government’s power to deport noncitizens for past membership in communist organizations, even if there was no direct criminal act. These cases show how immigration law has historically been used to suppress political dissent.

Deportation Proceedings for Green Card Holders

What Triggers Deportation Proceedings?

Lawful permanent residents (green card holders) are not immune to deportation. Under the INA, LPRs may be placed in removal proceedings for reasons such as:

• Criminal convictions (e.g., aggravated felonies, drug offenses, crimes involving moral turpitude)
• Fraud or misrepresentation in obtaining a green card
• National security concerns
• Abandonment of residency
• Engaging in subversive activities or supporting terrorism

Although the First Amendment protects free speech, green card holders can still face deportation if their speech is interpreted as a threat to national security or as advocating unlawful actions.

Expedited Removal vs. Deportation Proceedings

Most LPRs are entitled to full removal proceedings before an immigration judge, but in some cases, expedited removal can apply. Expedited removal is usually reserved for individuals who:

1. Are caught at the border or entry points without proper documentation
2. Misrepresent material facts in their visa or green card applications
3. Are deemed a threat to national security

If a green card holder is found at a port of entry engaging in behavior deemed to be harmful to national security (such as expressing support for terrorist organizations), they could be placed in expedited removal proceedings under INA § 235(b)(1).

First Amendment and Immigration Law: When Can Free Speech Lead to Deportation?

The First Amendment guarantees freedom of speech, but courts have historically upheld the government’s authority to deport noncitizens for speech-related activities under certain conditions.

Historical Cases of First Amendment and Deportation

1. The Case of John Lennon (1972)

One of the most famous deportation cases related to the First Amendment involved John Lennon, the former Beatle. The Nixon administration sought to deport Lennon due to his anti-war activism and alleged drug conviction. Although his deportation was initially framed as being due to an immigration violation, it was widely understood that his political views were the real motivation. Lennon fought back and eventually won his case in Lennon v. U.S. INS (1975), setting a precedent that political speech alone is insufficient grounds for removal.

2. Kleindienst v. Mandel (1972)

In this case, Belgian Marxist journalist Ernest Mandel was denied a visa to the U.S. based on ideological grounds. The Supreme Court ruled that while the government has broad authority to exclude noncitizens, its decisions must be justified by “a facially legitimate and bona fide reason.” This case set the stage for how courts review government decisions that restrict speech-related immigration issues.

3. Reno v. American-Arab Anti-Discrimination Committee (1999)

This case involved the Los Angeles Eight, a group of Palestinian activists facing deportation for their association with the Popular Front for the Liberation of Palestine (PFLP). The Supreme Court ruled that immigration enforcement priorities are largely unreviewable and that the government can remove noncitizens for political speech if it has a rational basis for doing so.

When Can a Green Card Holder Be Deported for Speech?

A green card holder cannot be deported simply for expressing controversial opinions, but they may be placed in removal proceedings if their speech:

1. Advocates the violent overthrow of the U.S. government
2. Encourages terrorism or material support for terrorist organizations
3. Violates immigration fraud laws (e.g., lying on immigration documents about affiliations)
4. Constitutes a “clear and present danger” to national security

For example, if an LPR publicly advocates for a terrorist group and is found to have raised funds for such an organization, they may be charged under INA § 237(a)(4)(B) for “engaging in terrorist activities” and placed in removal proceedings.

Conclusion

Throughout U.S. history, immigration law has been used as a tool to control political dissent, with many noncitizens facing deportation or exclusion based on their ideological beliefs. While the First Amendment offers strong protections for speech, green card holders are still vulnerable to deportation if their speech is deemed a threat to national security or falls under legal prohibitions on incitement or material support for terrorism.

Notable cases, such as those of John Lennon and the Los Angeles Eight, have demonstrated the tension between free speech rights and immigration enforcement. The U.S. government retains broad discretion in deportation cases, especially in matters of national security. However, legal challenges and advocacy continue to push back against overly broad interpretations of deportable speech.

In modern times, as political rhetoric becomes increasingly scrutinized, the balance between free expression and immigration enforcement remains a contentious issue. Green card holders should be aware of their rights and the legal precedents that shape this complex area of law.