TalkLeft Talks Habeas...

WASHINGTON — The U.S. District Court for the Western District of Washington ruled today that the federal government’s Controlled Application Review and Resolution Program (CARRP) is “arbitrary and capricious,” and violates the Administrative Procedure Act (APA). CARRP is a discriminatory policy that instructs immigration officers to label some people applying for immigration benefits – like green cards or citizenship – as “national security concerns.” According to CARRP, someone can be branded as a “national security concern” based on innocuous characteristics, like speaking another language or having an advanced technical degree. Once USCIS decides a person is a “national security concern,” it bends over backwards to find a way to reject their application for benefits. People in CARRP have to endure extended processing delays and much higher denial rates, which can tear apart their personal and professional lives. “This decision makes clear that CARRP was a horribly flawed idea from the beginning,” said Charlie Hogle, staff attorney with the ACLU’s National Security Project. “It needlessly harms aspiring Americans, many of whom have homes, families, and careers here.” In its decision, the court recognized that, despite years of litigation, the federal government has never pointed to any evidence explaining its decision to create CARRP. The court also found that, in designing CARRP, the federal government failed to consider whether it would be able to decide applications in CARRP within a reasonable amount of time, as the law requires. These failures make CARRP unlawful. “Today’s order is a huge step forward in vindicating the rights of thousands of people with lawful status who are subjected to arbitrary and unlawful delays that wreak havoc on their lives,” said Matt Adams, legal director of the Northwest Immigrant Rights Project. “These delays —often for years—cause people to lose jobs and homes.” The plaintiffs challenging CARRP also argued that the policy violates their constitutional rights to due process and equal protection. The court did not agree with those arguments, even as it concluded that CARRP violates the APA.

WASHINGTON — The Supreme Court issued a major blow to freedom of expression online today by refusing to block legislation that will effectively ban TikTok in the United States beginning this Sunday, January 19. The decision will impact more than 170 million Americans who use the social media platform and will endanger the constitutional rights of every American to speak and receive information online. “The Supreme Court’s ruling is incredibly disappointing, allowing the government to shut down an entire platform and the free speech rights of so many based on fear-mongering and speculation,” said Patrick Toomey, deputy director of ACLU’s National Security Project. “By refusing to block this ban, the Supreme Court is giving the executive branch unprecedented power to silence speech it doesn’t like, increasing the danger that sweeping invocations of ‘national security’ will trump our constitutional rights.” Under the First Amendment, the government must meet an extraordinarily high bar to ban an entire communications platform. It must show that the ban is the only way to prevent serious, imminent harm to national security, and that the ban limits no more speech than necessary to accomplish that purpose. As the ACLU noted in its amicus in support of TikTok, the government has not come close to meeting that standard. Absent last-minute action by Congress or the president, starting January 19, TikTok is likely to disappear from app stores in the U.S. and existing U.S. users will probably lose the ability to update the app on their devices, at the very minimum. However, President Biden or President-elect Donald Trump could grant TikTok an extension under the law or direct the Department of Justice not to enforce the ban. This week, Sen. Ed Markey (D-MA) also introduced a bill that would give Bytedance, the Chinese parent company of TikTok, more time to sell the app. “Taking away Americans’ free speech rights does not make us safer; it endangers our democracy,” said Jenna Leventoff, senior policy counsel at ACLU. “The next administration must immediately work with Congress to fix or repeal this flawed legislation. No one should be stripped of their ability to express themselves, especially on a platform that brings together such an immense, vibrant collection of voices from around the world.”

Our First Amendment right to express ourselves must be protected.

WASHINGTON — Ahead of confirmation hearings for President-elect Trump’s nominee for secretary of the Department of Homeland Security, Kristi Noem, the American Civil Liberties Union is urging the Senate Homeland Security and Governmental Affairs Committee to evaluate her record on civil rights and liberties amid Trump’s promise to deport mass number of immigrants from the United States. While the ACLU does not endorse or oppose nominees for cabinet-level positions as a matter of organizational policy, we have spent more than 100 years holding power accountable. In line with that history, we are examining and publicizing cabinet nominees’ records on civil rights and civil liberties and urging senators to seek and obtain commitments from the nominees on key concerns. “In its short history, the Department of Homeland Security has been responsible for implementing some of the worst anti-immigrant actions family separation, and is now poised to execute President Trump’s promise of mass deportations,” said Sarah Mehta, senior policy counsel at the ACLU. “This is our nation’s largest domestic law enforcement agency, and under any president, DHS’ unchecked authority should be cause for alarm. Given President-elect Trump's promises, the stakes are even higher. The Senate must take seriously its ‘advice and consent’ role and get Kristi Noem on the record on important issues that impact all our communities, including surveillance, religious and racial profiling, and use of force against protestors.” The Department of Homeland Security, founded in 2002, combines an array of federal resources and agencies covering counter-terrorism operations, border security, immigration enforcement, intelligence gathering, and disaster management. The ACLU objected to its creation at the outset — warning this sprawling mandate would target immigrants and lead to racial and religious profiling. Over the years, we have sued for a range of abuses and violent conduct, including excessive force against protestors; deadly detention facilities; numerous incidents of racial profiling; and illegal arrests and detention of U.S. citizens as well as immigrants and visitors. Homeland Security was also pivotal in Trump’s most extreme policies during his first administration — including his family separation policy — and has been responsible for the expansion of invasive domestic surveillance and intelligence gathering, including facial recognition software. Kristi Noem represented South Dakota in the U.S. House of Representatives before becoming governor in 2019. In 2017, as a member of Congress she backed then-President Trump’s Muslim ban policies, although two years later as governor she allowed refugee resettlement to resume in South Dakota. During her time as governor, she has adopted Texas Gov. Abbott’s “invasion” rhetoric, referring to the U.S. border with Mexico as a “warzone” and sending National Guard troops to Texas to join the abusive Operation Lone Star. However, by and large Noem’s record on immigration and other DHS issues remains thin. If confirmed by the Senate, Noem will be charged by President-elect Trump to prioritize DHS funds on detention and deportations, even at the cost of our preparedness for and ability to respond to natural disasters. The Trump White House is also expected to dramatically increase DHS surveillance and intelligence and militarized policing in our communities — especially among our most vulnerable populations — for years to come. The ACLU is urging the Senate to get Noem on the record on key questions, including: Will you seek assistance from uniformed military personnel to conduct militarized immigration raids in our neighborhoods and build large-scale detention camps across our nation? Will you re-implement President-elect Trump’s family separation policy? Will you use the Federal Emergency Management Agency (FEMA) and other non-immigration DHS agencies to support mass deportations, or withhold them to punish states and localities that refuse to participate in mass deportations? What steps will you take to protect our privacy and civil liberties from federal domestic surveillance, intelligence gathering, and watchlisting? Will you prevent these powers from being used against protestors or to be targeted at perceived opponents of the president? For years, CBP, ICE, and other components of DHS purchased individuals’ data from data brokers to surveil and track us, including for immigration purposes. Last year, it was reported that DHS was expected to pause data purchases. Will you continue the pause on data purchases?