Immigration and Customs Enforcement (ICE) mulled the idea of conducting ideological screenings on foreign nationals during the Trump administration, according to newly released documents.
The Guardian reported that the two memos were written and revised by ICE and top White House lawyers during Trump’s term in office, and were recently obtained by Columbia University’s Knight First Amendment Institute after filing a Freedom of Information Act lawsuit in 2017.
Though the idea of performing ideological screenings on foreign nationals in the U.S. was considered in the memos, the administration ultimately decided against it due to concerns about the legality of such screenings.
The first memo explores the constitutional constraints on what Trump called the “extreme vetting” of noncitizens through the use of “screening tests.”
“It seems likely that at least a large fraction of those aliens located in the United States who would be the subject of the vetting would be able to assert various constitutional rights,” the memo read, according to The Guardian. “We therefore recommend assessing proposals being considered on the assumption that the aliens within the United States are generally protected by the Constitution.”
There was also discussion about what could happen if an individual was mistakenly included on a watchlist.
“There may also be claims against programs related to vetting that are targeted against particular individuals or groups, alleging that the targeting itself is on an impermissible basis,” the memo said.
The second memo focused on people who “endorse or espouse terrorism,” and concluded that First Amendment protections shielded people from being removed for expressing support for terrorist-related activity.
“The security-related inadmissibility ground for endorsing or espousing terrorist activity targets speech that demonstrates a degree of public approval or public advocacy for terrorist activity,” the memo stated, according to The Guardian. “Depending on an alien’s immigration status, contacts with the United States, and location, first amendment concerns may limit use of this inadmissibility ground.
“In cases involving aliens within the United States interior — lawful permanent residents either inside or outside the United States, or aliens outside the United States who have significant US contacts, first amendment protections could apply,” it added.
The lawsuit reportedly came in response to then-President Trump’s announcement that there would be a “total and complete shutdown of Muslims entering the United States” and that noncitizens would be subject to “extreme vetting.”
Lawyers from the Knight First Amendment Institute told The Guardian that the lawsuit’s aim was to determine how the policy could be legally justified.
Foreign student visa holders and other foreign nationals expressing opinions not aligned with those of the federal government could have been at risk of deportation if the policy discussed in the memos had been implemented.
Carrie DeCell, a senior staff attorney for the institute and a Columbia Law School lecturer, told The Guardian that the discovery of the memos is significant because it details why such a policy would be considered unconstitutional.
“These memos make it clear that government lawyers themselves have carefully considered whether proposals to remove people from the country based on their political speech [and] proposals removing people for endorsing terrorism are constitutional, and they concluded that, in many contexts, the answer is likely no,” DeCell said.
Nicole Weatherholtz ✉
Nicole Weatherholtz, a Newsmax general assignment reporter covers news, politics, and culture. She is a National Newspaper Association award-winning journalist.
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