The Trump Administration has been targeting pro-Palestinian activists under an obscure provision of the Immigration and Nationality Act (INA), which provides, “An alien whose presence or activities in the United States the Secretary of State has reasonable ground to believe would have potentially serious adverse foreign policy consequences for the United States is deportable.” See INA § 237(a)(4)(C)(1). Under this section, Marco Rubio, the Secretary of State, can basically designate any non-citizen for deportation.
Until recently, this provision was rarely used, but now, the Trump Administration seems intent on labeling hundreds of non-citizens–mostly students who have expressed opposition to Israel’s war in Gaza–as people whose presence in the U.S. has “potentially serious adverse foreign policy consequences,” thus rendering them deportable.
Here, we’ll discuss INA § 237(a)(4)(C)(1) and some policy implications of its widespread use.
When I first heard about the Administration’s efforts to deport pro-Palestinian students for supposedly supporting the terrorist group Hamas, I thought they would rely on one of the many anti-terrorism provisions of the INA, which are quite broad. Essentially, anyone who “endorses or espouses” terrorism is deportable. The problem with this provision is that it involves a question of fact: The Immigration Judge must review the evidence and determine whether the charged non-citizen was somehow supporting terrorism. It might be difficult for DHS (the prosecutor) to prove this point, given that most reasonable judges would not equate opposing the war or supporting Palestinian rights with support for Hamas.
The evil genius of relying on the Secretary of State’s determination is that it cannot be reviewed by an Immigration Judge. If Mr. Rubio finds that a particular non-citizen’s presence in the U.S. has “potentially serious adverse foreign policy consequences,” that person is deportable. There is no fact finding for a judge to do, and the Secretary’s determination is essentially checkmate in Immigration Court (though the person could still apply for protection under the United Nations Convention Against Torture).
While that may be end of the road in court, it’s not quite the end. That’s because there is a Constitutional question here: Whether INA § 237(a)(4)(C)(1) is so vague as to be unconstitutional. What does this mean?
Basically, where a law is so unclear that we cannot know what it means, and thus cannot avoid violating the law, that law may be invalid under the Constitution. In our case, INA § 237(a)(4)(C)(1) means whatever the Secretary of State says it means. So if Mr. Rubio declares that non-citizens who believe in man-made climate change cause “potentially serious adverse foreign policy consequences,” then non-citizens who believe in man-made climate change are deportable. If a new Administration ever takes office and concludes that non-citizens who do not believe in man-made climate change cause “potentially serious adverse foreign policy consequences,” then these non-citizens would be deportable. In this example, non-citizens really can’t know what to do to avoid deportation, other than to purge their minds of any thoughts related to climate change. But even then, what if another Administration concludes that any non-citizen who refuses to think about climate change is causing “potentially serious adverse foreign policy consequences”? In short, because it is impossible to know in advance what will trigger deportation under this law, it is arguably void for vagueness.
Given the number of cases where INA § 237(a)(4)(C)(1) is being employed, we can expect the issue to eventually reach the Supreme Court. The judiciary in general–and this Supreme Court in particular–have been deferential to the Executive Branch in the area of immigration. However, there is a long-standing principle that ambiguous statutes are interpreted in favor of non-citizens and that Green Card holders are protected by the First Amendment right to free speech. How these competing interests will play out at the high court, we shall see, but until we have some clarity, non-citizens who speak publicly about the Israeli-Palestinian conflict face a risk of harm from the current Administration.
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One last point. Several right-wing Zionist organizations have identified pro-Palestinian activists online, and have claimed credit when they were arrested. Whether these organizations are actually responsible for the arrests is not clear, but the organizations have certainly celebrated the Administration’s efforts to allegedly combat antisemitism by targeting pro-Palestinian immigrants.
For several reasons, I think these efforts are bad for the Jews. First, by arresting primarily Muslim non-citizens in the name of Jewish people, the Administration is pitting Jews against Muslims and trying to drive a wedge between our communities. Second, the Administration is reinforcing antisemitic tropes (such as Jews control the institutions), and so we will take the blame for the arrested non-citizens. Third, by labeling opposition to Israel as anti-Semitic (or pro-Hamas), we conflate legitimate criticism of Israel with actual antisemitism, which dilutes the term “antisemitism” and makes it more difficult to condemn those who actual hate Jews. Finally, the push to punish free speech is contrary to Jewish values, which have always supported robust debate.
As my rabbis have stated, “Freedom of speech, and the freedom to practice our religion, have long protected Jews in America.” If we as Jews allow the erosion of those principles–especially when done in our name–it is not only pro-Palestinian immigrants who will be harmed. Ultimately, the danger will reach us all.
Hello Jason, I received asylum approval few months ago and I need to go on vacation after being stuck in the US for nearly 9 years.
However, I’m concerned about re-entry. The main reason for my concern was because USCIS called me for a secondary asylum interview before my grant to discuss involuntary connections to an organization deemed extremist by some in the US government. Although I clarified that my involvement was limited to attending spiritual gatherings in the mosque and doing charity work, plus I was a minor under familial pressure to do this. I was granted asylum a few weeks after that.
I’m worried this might affect my ability to reenter the US. Can CBP officers access this information and deny me entry based on it? Thank you
I have a GC but worried to travel after the new about detaining green card holders at the boarders,I have no criminal record and never stayed outside of the US more than 3 weeks a year what’s your intake should we avoid traveling in this administration?
Hi Jason
Below is my online status. I got 2 interviews and I was told that decision will be mailed. I am super confused. Plz help. Newark asylum office. It’s been 9 days no letter and eoir phone system is also no case found for my a-number.
Decision was mailed.
We reached a decision on your application. You were scheduled to pick up the decision in person and you failed to appear at this appointment. Your failure to pick up the decision as scheduled is considered an applicant-caused delay for purposes of eligibility for employment authorization. We will send you more information.
Consequently your 180-Day Asylum EAD Clock has stopped as of March 25, 2025. As of March 25, 2025 you have 3312 days attributed to your 180-Day Asylum EAD Clock.
Hi Jason,
we applied for asylum in 2016 and interview is still pending. My daughter came as a 9 year old and we filed for asylum as a family. My daughter is finishing her high school and has got admission into Princeton university, as an international student as there was no other option available in the college application with 90 percent aid. Normally an international student applies for F1 visa to attend school but since my daughter is pending asylum cannot apply for F1 visa , so in this case what should we do so that my daughter can attend college in august 2025.
Most colleges allow people to attend as long as they have a work permit. You should check with the school and hopefully, she can attend that way. If not, maybe they can advise you about other options, but normally, if she has a work permit, that should be enough. Take care, Jason
For Jason and others,
I have found 2 guys who have had their GC interviews based on Refugee status after the “pause news” , last week. Both interviews went well and easy, officers processed as usual and no comments about pause or deferred approvals. In 1 case background checks needed to be updated because person applied in 2023 and in another case officer said he will finalize everything and will make a decision shortly.
Grate news.
I’ll guess many officers will use the comune sens of normality and follow the moral compass of their professional integrity.
Thank you for your info.
Thank you for the update. Which field office conduct their GC interview? How long it takes to schedule the interview after their case transferred to local field office.
Thank you
The problem is that we do not know what the pause really means and who is affected, as USCIS has not given any details. Take care, Jason
Dear Jason,
https://www.cbsnews.com/baltimore/news/maryland-father-deported-el-salvador-abrego-garcia-us-immigration/
The government has created a precedent of forcefully detention and removal of a WOR recipient.
I believe when people with WOR are going to report as scheduled to the ICE office, that day they will be detained and sent to the DHS black-wholes camps.
State and Federal judges decisions are totally ignored under the pretext of national security.
My grand parents experienced this treatment under Hitler and Stalin.
It looks like is my turn under Trump and Co.
Thank you for your blog.
I think most people with WOR or CAT will not face this problem, as it will take a lot of resources to detain and remove such people to third countries. But we will see. Take care, Jason
Hi Jason,
In January i’ve sent a ROP request to federal plaza to get my full proceeding, i got the email confirmation that they received it, but it’s been 3 months and nothing…..should i do it again? Website says don’t file blablabla it will slow everything down, but c’mon it’s not like they are good at remembering stuff
Maybe it takes longer in NYC, I do not know. You can try calling the court to ask – you can find their number if you follow the link under Resources called Immigration Court, or you can go in person to ask. Maybe if you can talk to someone there, at least they can give you an idea about the time frame or if there are currently delays. Take care, Jason