The Trump Administration Contemplated Subjecting Noncitizens to 'Ideological Screenings'

According to recent reports by The Guardian, under the Trump administration, Immigration and Customs Enforcement (ICE) considered the ramifications of removing foreigners from the U.S. on the basis of their political opinions. Recently, the Knight First Amendment Institute at Columbia University received two memoranda via a Freedom of Information Act (FOIA) petition filed in 2017 and prepared and edited by the US Immigration Enforcement Agency and senior White House attorneys. The documents explored plans to undertake ideological tests on foreigners in the US but eventually found such a scheme would be unlawful to execute.

One of the memos read, "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. We, therefore, recommend assessing proposals being considered on the assumption that aliens within the United States are generally protected by the Constitution." However, in the other one, the topic of foreign nationals who "endorse or espouse terrorism" was explored, and it was determined that the exclusion or expatriation of such individuals would violate the Constitution.

As per the outlet, the second one stated, "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. Depending on an alien’s immigration status, contacts with the United States, and location, First Amendment concerns may limit the 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." The policy considered in the memos would have been a clear violation of the First Amendment right to free speech if it had been implemented during Donald Trump's presidency.

Last month, as reported by ABC News, the former president promised supporters in Iowa that if he were elected again, he would implement "ideological screening" of all immigrants and exclude those who backed Hamas or other Muslim extremist groups. Trump has long raged against the United States accepting immigrants from nations he has considered inferior, especially in Africa and the Middle East. He told the gathering at the time that the United States had stood up for Israel and "Judeo-Christian civilization and values" during his presidency.

Donald Trump originally called for "a total and complete shutdown" of Muslim immigration to the United States in 2015. Upon taking office, he and his team attempted to issue a comprehensive executive order, which was ultimately restricted to five nations with Muslim majorities (Iran, Libya, Somalia, Syria, and Yemen), along with North Korea and Venezuela. During recent pro-Palestinian protests in New York, Trump referred to the "mobs... literally barbarians that we saw in the streets of New York" and stated he would "proactively" dispatch immigration officials to "pro-jihadist demonstrations" to deport noncitizens.