Natacha Pisarenko
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8.23.21 8:00am
Activist Claudio Rojas says he was deported to his homeland Argentina for appearing in a film that criticized U.S. immigration authorities.
Rojas is one of the stars of The Infiltrators. He was invited to introduce the movie at the Miami Film Festival in 2019. Instead, Rojas was detained at a routine check-in with Immigration and Customs and Enforcement.
A few weeks later, he was deported.
"They didn't like that the film had come out," Rojas told NPR in Spanish through an interpreter. "If I would have shown up at the Miami Film Festival, I was going to talk a lot. And they wanted to avoid that. So they silenced me."
Immigrant rights advocates have argued for years that ICE is deliberately retaliating against them, despite the agency's denials. Lawyers for Rojas say his case is especially egregious, and raises big questions about immigrants' freedom of speech.
A federal appeals court heard arguments in his case last year, and is now poised to issue a ruling that could have lasting implications.
Rojas's lawyers say it's a clear-cut case of retaliation
"You don't want a situation where people believe that if you speak out, the government is coming after you. But that's what happened to Claudio," says Alina Das, a professor at New York University School of Law who is representing Rojas in his appeal.
ICE denies retaliating against Claudio Rojas, or anyone else. The agency says it is simply enforcing immigration law against people who are living in the country illegally — including Rojas. He overstayed a visa more than 20 years ago, and raised a family in Florida before he was detained by ICE in 2010.
Rojas appears as himself in The Infiltrators. The film, which is part documentary and part drama, centers on Rojas and a group of young activists who deliberately sneak into the immigrant detention center where he was held to help get others out.
At the end of the film, Rojas is released from ICE detention, and goes back to living with his family in South Florida. That's how it went for Rojas in real life for the next seven years. He has no criminal record, his lawyers say, and was attending regular check-ins with ICE while pursuing a visa to stay in the U.S. legally.
That is, until the movie premiered in early 2019.
"The only thing that changed right before they decided to take him in was that a documentary film featured his activism, his advocacy for immigrant rights," Das says in an interview with NPR. "That kind of timing is clear proof of First Amendment retaliation."
But that may not be enough for Rojas to win in court.
Immigration authorities have a lot of discretion about who to deport
It's widely agreed that the First Amendment applies to everyone in the country, whether they're a citizen or not. In practice, though, courts tend to give immigration authorities a lot of discretion about who they deport, says Michael Kagan, who teaches immigration law at the University of Nevada, Las Vegas.
"You have millions of people inside the United States, a country that prides itself on free speech. Yet the government wields a sword over their head, with possibly no restraint," Kagan says.
Kagan says there's one Supreme Court ruling in particular that gives ICE a lot of power: A case known as Reno v. American-Arab Anti-Discrimination Committee, or just AADC.
"That case said that basically, the discretion of the government to decide who to deport can't be challenged," Kagan says. "That's really bad news for immigrants."
Appeals court weighs whether Rojas case is "outrageous"
That decision came up a lot when a three-judge panel from the 11th Circuit Court of Appeals heard arguments in the Claudio Rojas case last September.
The lawyer for the Justice Department, Thomas Benton York, argued that ICE followed all the rules when it deported Rojas — and therefore, there's nothing he can do to challenge his deportation in federal court.
"This is a situation where the government did have discretion," York said during the hearing. "It's not disputed that there's a final order of removal."
But the Supreme Court's ruling in the AADC case left the door open for a future deportation case that is so "outrageous," as Justice Antonin Scalia wrote, that it would cross the line.
And appeals court Judge Robin Rosenbaum asked during the hearing whether the Rojas case fits that description.
"There's possibly an outrageous First Amendment scenario where it could be a problem," Rosenbaum said. "It seems to me the situation couldn't be much more outrageous than what we have here."
While Rojas's lawyer was arguing his case, he was in Argentina. thousands of miles away from his family — including a grandchild he's never met in person.
"They've taken drastic steps against us, separating us from our family. And there's a big price that we're paying ... just for raising our voices, no?" he said.
It's very rare for ICE to bring anyone back to the U.S. after deporting them. But Rojas's lawyers say that's the only way to bring justice to his family.
Anything less, they argue, would only confirm that freedom of speech doesn't apply to everyone.
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