ICE deported an activist after the release of his movie. This raises issues for freedom of expression: NPR


Claudio Rojas, a 55-year-old handyman who was deported from the United States in 2019, poses for a photo at his home in Moreno, Argentina, on May 8. His wife, two sons, and two grandchildren remained in Florida.

Natasha Pisarenko/AFP

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Natasha Pisarenko/AFP

Claudio Rojas, a 55-year-old handyman who was deported from the United States in 2019, poses for a photo at his home in Moreno, Argentina, on May 8. His wife, two sons, and two grandchildren remained in Florida.

Natasha Pisarenko/AFP

Activist Claudio Rojas says he was deported to his homeland, Argentina, for appearing in a film critical of US immigration authorities.

Rojas is one of the stars hackers. He was invited to present the film at the Miami Film Festival in 2019. Instead, Rojas was detained during a routine search with Immigration, Customs and Enforcement.

A few weeks later, he was deported.

“They didn’t like that the movie was shown,” Rojas told NPR in Spanish through a translator. “If I had come to the Miami Film Festival, I would have talked a lot. And they wanted to avoid it. So they silenced me.”

Immigrant rights advocates have argued this for years ICE is deliberately taking revenge on themAlthough the agency denied. Rojas’ lawyers say his case is particularly scandalous and raises big questions about immigrants’ freedom of expression.

A federal appeals court heard the arguments in his case last year and is now about to issue a ruling that could have lasting repercussions.

Rojas’ lawyers call it revenge, while ICE says it’s enforcing the law

says Alina Das, a professor at New York University School of Law who represents Rojas in his appeal.

ICE denies retaliation against Claudio Rojas or anyone else. The agency says it simply enforces immigration law for people living in the country illegally β€” Rojas included. He overstayed his visa over 20 years ago and started a family in Florida before he was detained by Immigration and Customs Enforcement in 2010.

Rojas appears as himself in hackers. The film, which is part documentary and part drama, centers on Rojas and a group of young activists who intentionally infiltrate the immigration detention center where he was held to help get others out.

At the end of the movie, Rojas is released from Immigration and Customs Enforcement prison and returns to live with his family in South Florida. This is how things went with Rojas in real life for the next seven years. His lawyers say he has no criminal record, and has been attending regular visits with ICE while seeking a visa to stay in the United States legally.

That is, until the film premiered in early 2019.

“The only thing that changed before they decided to take him in was that a documentary showed his activism, his defense of immigrant rights,” Das says in an interview with NPR. “This kind of timing is clear evidence of the First Amendment’s revenge.”

But this may not be enough for Rojas to win in court.

Immigration authorities have a great deal of discretion over who to deport

It is widely agreed that the First Amendment applies to every person in the state, whether or not they are citizens. But in practice, courts tend to give immigration authorities a great deal of discretion over whom they deport, says Michael Kagan, professor of immigration law at the University of Nevada in Las Vegas.

“You have millions of people inside the United States, which is a country that prides itself on freedom of speech. And yet the government puts a sword over their heads with no strings attached,” Kagan says.

There is one Supreme Court ruling in particular, Kagan says, that gives ICE a great deal of power: a case known as Renault v. American-Arab Anti-Discrimination Committee, or just AADC.

“That case basically said, ‘The discretion of the government in deciding who to deport cannot be challenged,'” Kagan says. “This is really bad news for immigrants.”

Appeals court examines whether Rojas case is ‘outrageous’

This decision often came when a three-judge panel of the Eleventh Circuit Court of Appeals heard arguments In the Claudio Rojas case last September.

DOJ’s attorney, Thomas Benton York, argued that ICE followed all the rules when it deported Rojas – and thus, there was nothing he could do to challenge his deportation in federal court.

“This is a situation in which the government had discretion,” York said during the hearing. “It is indisputable that there is a final order to remove.”

But the Supreme Court ruling in the AADC case left the door open for a future “outrageous” deportation case, Justice Antonin Scalia wrote, to cross the line.

During the hearing, Court of Appeals Judge Robin Rosenbaum asked whether Rojas’ case fit that description.

“There’s probably a terrible First Amendment scenario that could be a problem,” Rosenbaum said. β€œIt seems to me that the situation could not be more terrible than what we have here.”

While Rojas’ lawyer was discussing his case, he was in Argentina. Thousands of miles away from his family – including a grandson he never met in person.

“They have taken drastic steps against us, separating us from our family. And there’s a big price to pay…just to raise our voices, right?” He said.

It is very rare for ICE to return a person to the United States after they have been deported. But Rojas’ lawyers say this is the only way to achieve justice for his family.

They argue that anything less than that would only confirm that freedom of expression does not apply to everyone.

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