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,Thank you for all what you do.
My Friend applied for form 1-485 in 2023 after granted asylum from IJ.and in September 2023 his case was transferred to a different USCIS office stating it was for speeding up the process.In March this year they transferred his case to National Benefit Center and the Receipt Notice they stated they have completed a preliminary review as part of standard processing ,stating the new office has the jurisdiction over the case and they will notify me when the office make the decision.His case has been pending for 26 months now ,do you think he has something to worry about regarding his case.
Thank you.
Hi Jason
Here is something that happened in the neighborhood. ICE officers in unmarked cars and normal everyday clothes with no badges suddenly entered a private apartment building and asked people for identification and arrested two people. There was chaos, and then the local church group asked how they had entered a private property with no warrants. It was mentioned that law enforcement can enter private property if they see illegal activity in plain view. The problem is that how did ICE detect illegal activity? Was it a bunch of brown people walking around? How does this work? Do they have warrants or do they just enter random apartments?
-Respected Jason,
Hope you are all doing well. My wife is a principal applicant and I am a derivative of her case. Currently, my wife’s asylum is pending in immigration court, and scheduled for a master hearing in mid-July,2025.
Currently,I’m pursuing a professional license ( MORTGAGE LOAN ORIGINATOR) in New York. In order to get the MLO license, I’ve to complete state and FBI criminal background checks…. My question is if I go through with an FBI background check, is there any risk at this dangerous time ? Can the FBI, report my immigration status
to ICE? I’m confused what should I do. Please advise. I highly appreciate your help as always. Thank you very much.
I have not heard about an FBI background check triggering a contact with ICE, and I doubt that would happen, but I do not know for sure. Since you are already in immigration court, ICE obviously knows about you already, so I guess I am not sure that the background check would have any further effect. Take care, Jason
Hi Jason,
I have a pending asylum interview since 2017 at the Arlington office. Do you see any recent changes of people getting interview? Any hope to expedite the interview? This is becoming very stressful.
Best regards,
Hailu
We are seeing people get interviews from 2015 and 2016. You can try a mandamus lawsuit, as that is a way to get an interview. You can also try to expedite – I wrote about that on March 23, 2022. Take care, Jason
Hi Jason,
I received my asylum approval today, and I’ve come across conflicting information regarding when I can apply for a green card. Could you clarify the timeline? Would it be advisable to apply before the one-year mark?
Thanks,
Reema
Congratulations – it is nice to hear good news. You can apply any time, but I (and I think most lawyers) recommend waiting 6 months before you apply, but that is up to you. I explain the reasoning in a post dated February 6, 2023 – hopefully that post will be helpful. Take care, Jason
Jason, very well said!
The Secretary of State’s use of INA § 237(a)(4)(C)(1) to deport lawful permanent residents (LPRs) who have expressed pro-Palestinian views, to me, raises serious constitutional concerns. This provision, which allows deportation if a non-citizen’s “presence or activities” are believed to have “potentially serious adverse foreign policy consequences,” is extremely vague- especially in light of the fact that the government has not provided concrete evidence to support its accusations against these people, and it has not charged any of them with a crime- and grants unchecked discretion to the executive branch. Like you have alluded to, the lack of clear standards- and I would prefer if they are enumerated or listed- makes it impossible for individuals to know what speech or conduct might trigger deportation. This therefore invites arbitrary enforcement and violates due process protections under the Fifth Amendment.
Moreover, applying this provision to individuals who have publicly opposed the war in Gaza—most of whom were protesting what they determined to be genocide and humanitarian abuses, not supporting Hamas, btw—directly implicates the First Amendment. LPRs are entitled to robust free speech protections, especially regarding political expression. Equating peaceful criticism of a foreign government with support for terrorism is both factually unfounded and constitutionally dangerous.
The courts have long recognized that ambiguous deportation statutes must be interpreted in favor of non-citizens. Here, the provision fails to define what constitutes “adverse foreign policy consequences,” leaving it entirely to the subjective judgment of a political appointee (Rubio, for example). This effectively allows the Secretary of State to designate dissenting voices as threats, without judicial oversight or factual inquiry.
Thus, one could reasonably argue that the weaponization of INA § 237(a)(4)(C)(1) to silence dissent violates fundamental constitutional principles. It chills protected speech, lacks the precision required of laws affecting liberty, and sets a dangerous precedent where political beliefs become grounds for deportation. Courts should therefore recognize this as a textbook example of a statute void for vagueness and strike down its current application.
I think a federal district court did find that the statute was void for vagueness under the Constitution, but that was years ago and if I remember, that decision was overturned on a different basis. I do think there are very serious problems with this status. Whether that will be enough for the current Supreme Court to invalidate it, we shall see. Take care, Jason
Hi Jason, Thanks for everything you do
I am asylee and I got My RTD after expedite, I am From Colombia and I would like to travel to see my parents after 8 years, can I travel in this scary times, I will travel to a 3rd country, I never had convictions, traffic court, do you think Colombia will be have banned, I know they pause the ban and don’t look like will be one of the countries in the list.
MY GC is pending.
As long as the RTD is valid, you should be fine to make that trip. The one unknown is that ban, and we don’t know for sure what countries will be affected, whether asylees will be affected, or when the ban will go into effect. If you travel, I would just watch the news and if a ban is coming, see if it affects you, and then maybe come back to the US quickly if necessary. Take care, Jason
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 am not sure about that, and these days, the government is unpredictable in terms of what they do. My guess is that you would probably be ok, as long as you have a Refugee Travel Document and do not go to the home country, as I have not heard about people being detained under these circumstances (you also have to be aware of any travel ban in case that affects you). I think you will have to watch the news to see if people similar to you are having problems, and weigh your need to travel against any risk. Like I say, I have not heard about people similar to you being detained or having trouble, but given the current situation, I also can’t say that the risk is zero. Take care, Jason
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?
I think it is very rare for a GC person to be detained, and the cases I have heard about involved people with old convictions. It is a scary time, as the government is being arbitrary and cruel, but unless you have some prior criminal issue or a national security issue, travel should be fine (though do keep an eye out for any travel ban, as we do not know when that is coming or who it will affect). Take care, Jason
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.
It sounds like the asylum office believes you were supposed to pick up a decision and you failed to appear. You can try emailing them – you can find their email if you follow the link under Resources called Asylum Office Locator. I am not sure about going in person, as I do not know the policy there, but on that same link, there should be info about the office and maybe they have walk-in hours. Finally, there is another link called EOIR Case Status. You can enter your Alien number there to see if you have a case in court (meaning asylum was denied and sent to court). If you do not get a decision from the asylum office, you can check that website regularly to see if a case appears in court (hopefully not). Take care, Jason
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