Trump administration lawyers reject allegation of retaliatory arrest in Jeanette Vizguerra case

Lawyers for the federal government rejected immigration activist Jeanette Vizguerra’s claim that she is being detained and targeted for deportation because of her political speech, and once again asserted that the case is moving through the incorrect jurisdiction.

The government “had an objectively reasonable justification to arrest (Vizguerra) and detain her — namely, she is not lawfully present in the United States and is subject to a reinstated removal order,” an April 29 filing reads. “The presence of such valid reasons for the arrest and subsequent detention means that her First Amendment retaliation challenge fails.”

The new filing came in response to an amended petition from Vizguerra’s lawyers, which alleged that her March 17 detention was retaliation for her criticism of the Trump administration and national prominence as an activist, and therefore violated her protected First Amendment rights. The judge in the case, U.S. District Court Judge Nina Wang, issued a temporary block on any deportation efforts for Vizguerra before the court could consider the legality of her detainment.

The case centers on a reinstated removal order from 2013 that Vizguerra’s lawyers say is invalid.

But the federal government argued in its filing that legal precedent shows that noncitizens cannot bring challenges to their removal based on claims of selective enforcement. Lawyers pointed to a 1999 case where eight members of the Popular Front for the Liberation of Palestine claimed they were being unconstitutionally targeted for their political beliefs. The U.S. Supreme Court ultimately decided that immigrants without legal status do not have the defense of selective prosecution, because that argument only delays deportation proceedings in response to the violation of immigration law.

“The Court reached this decision even after the government admitted ‘that the alleged First Amendment activity was the basis for selecting the individuals for adverse action,’” lawyers wrote. “Here, (Vizguerra) brings a similar challenge to that brought by the noncitizens in (the 1999 case). She argues that (Immigration and Customs Enforcement)’s actions in arresting, detaining, and executing a reinstatement of a removal order against her were improperly based on retaliation for her activism. But she acknowledges that she has no lawful status in the United States.”

The new filing also questions the evidence Vizguerra’s lawyers used to argue that her detainment is retaliatory. Those include various social media posts celebrating her arrest from ICE, a public affairs official for the Department of Homeland Security and former ICE official John Fabbricatore. The posts are distinct in tone from other arrest announcements from the agency on social media because they specifically allude to her activist background and outspoken criticism of the immigration system.

“But she has not presented evidence that either the individuals controlling ICE’s X account or the Assistant Secretary for Public Affairs were involved in the decision to detain Petitioner. Accordingly, these posts do not show retaliatory motive,” the filing reads.

The government also asserted that the correct venue for the case would be in the Court of Appeals. A similar case was filed in the 10th Circuit, but has not seen movement.

In a different filing Tuesday, Vizguerra’s lawyers asked the court to clarify that the restraining order against her deportation also includes the so-called reasonable fear interview process. That is a part of removal proceedings where federal officials determine if deporting someone to their country of origin would put them at a serious risk of harm.

U.S. Citizenship and Immigration Services began that interview process shortly after Vizguerra’s detainment and have “repeatedly failed to notify counsel in advance of interview scheduling, have repeatedly attempted to proceed with the interview without counsel present, and in at least one instance falsely advised Ms. Vizguerra-Ramirez that her attorney had consented to and insisted that the interview move forward without counsel,” lawyer Laura Lichter wrote.

On April 14, USCIS made a negative reasonable fear determination after nearly a month of interview attempts that Lichter said violated due process.

“It is clear that Respondents DHS and ICE are directing USCIS as their agent or otherwise working in active concert or participation with the agency in forcing the conclusion of the reasonable fear process to facilitate, enable, and advance a removal that is temporarily enjoined,” Lichter wrote.

A hearing for the case has not been scheduled.

Vizguerra has lived in the United States since 1997. She was arrested in 2009 for having a fake ID and driving without insurance and was placed in removal proceedings. An immigration judge offered her the option of voluntary departure in 2011, which Vizguerra appealed. She then left the country in 2012 to see her dying mother in Mexico and reentered the United States without authorization in 2013. She was ultimately sentenced to ICE supervision and has been granted multiple stays of removal since then, the last of which expired last year. She gained national attention when she sought sanctuary in Denver churches to avoid deportation during the first Trump administration and was recognized as one of the 100 most influential people by Time Magazine in 2017.