Trump Administration Agrees to Terms in First Amendment Suit Days Before Election

October 28, 2020, Burlington, VT – In a settlement to a major federal lawsuit, Immigration and Customs Enforcement (ICE) has agreed not to deport the immigrant activists who sued the agency after suffering retaliatory arrests, and to instruct officers not to target people “for exercising First Amendment rights.” Immigrant farmworkers with Vermont-based human rights organization Migrant Justice led a march today to Burlington’s federal courthouse to claim victory and file the settlement in Migrant Justice v. Wolf. 

“With this settlement, we have shown that we won’t back down in the face of ICE’s abuses. They have tried to silence us by terrorizing our community and targeting our leaders, but we are here today to say that we will not be silenced,” said Victor Diaz, a Migrant Justice leader and plaintiff.

Today’s march mirrors a similar rally nearly two years ago when farmworkers marched on the courthouse to open the First Amendment claim. The 2018 suit alleged that ICE and the Department of Homeland Security conducted an unlawful, multi-year operation to surveil, harass, arrest, and detain the organization’s members and leaders. Migrant Justice contended that those activities were undertaken in retaliation against plaintiffs’ exercise of their rights to speech and assembly, and in order to destabilize Migrant Justice.

The lawsuit claimed federal immigration authorities had targeted Migrant Justice leaders and members since at least 2014, as the organization was engaged in high-profile human rights organizing across Vermont and nationally. As part of a larger pattern of suppressing immigrant activism nationwide, federal immigration authorities infiltrated the meetings and private associations of Migrant Justice through the use of a civilian informant, invasively surveilled its members, and mined their social media pages for information. In an attempt to undermine the organization, ICE spread false information about the organization, including that staff were collaborating with the agency to locate and detain immigrant community members.

Plaintiffs were represented in the lawsuit by the ACLU of Vermont, the Center for Constitutional Rights, the National Center for Law and Economic Justice, the National Immigration Law Center, and Gibson, Dunn & Crutcher LLP.

“The Constitution protects our freedom to defend human rights and that includes protecting the farmworkers in Vermont who organized and won driver’s licences and created their landmark Milk with Dignity Program,” said National Center for Law and Economic Justice Senior Attorney Leah Lotto. “Today’s settlement and victory for Migrant Justice shows how important it is to stand up against ICE’s wrongful actions targeting and detaining these and other activists fighting for equity in their communities." 

When the suit was filed in November 2018, ICE had detained more than 20 people actively involved in Migrant Justice, including the organization’s most prominent leadership. The lawsuit pointed to evidence of direct retaliation in nine of those cases. The Plaintiffs’ lawsuit documented how during the course of the arrests, ICE agents harassed and intimidated community leaders, referring to one as a “famous person” because of his activism, and named an additional member who would be “next.” ICE compiled dossiers on Migrant Justice leaders, including their social media pages and media appearances.

Three community leaders who have suffered from ICE’s targeted retaliation – Enrique Balcazar, Zully Palacios, and Victor Diaz – joined Migrant Justice as plaintiffs in the suit. All are in deportation proceedings after having been detained by ICE. Under the terms of the settlement, the federal government has agreed not to deport the three plaintiffs through grants of deferred action, which will allow them to remain in the United States, and obtain work permits. ICE will also pay damages of $100,000 to be divided among the plaintiffs.

“More than three years ago, ICE targeted me for my political activism and held me in detention for 11 days. They have been trying to deport me ever since,” said plaintiff Enrique Balcazar. “With this agreement, ICE is admitting defeat, allowing myself and others to remain in the country and accepting that they cannot target people for speaking out and organizing. We want this to become a precedent so that other groups and community leaders can organize without fear of retaliation. Because fear is not an option for our communities.”

Through the agreement, ICE must also tell its agents that immigrants, regardless of status, are protected by the First Amendment and have the right to freedom of speech and assembly. The agency must send a memorandum to all employees in Vermont explaining “the obligations of this Office to act in accordance with the First Amendment, including its commitment to not profile, target on account of, or discriminate against any individual or group for exercising First Amendment rights.” 

“The First Amendment enshrines the right of all individuals to speak and assemble peaceably without fear of retaliation or discrimination by the government on account of race or immigration status,” said Joel Cohen, a partner at Gibson, Dunn & Crutcher LLP.  “This settlement underscores that the government will be held to affirm its commitment to upholding these fundamental rights for all.”

“Zully, Enrique, Victor, and Migrant Justice members have been at the forefront of the fight for immigrant rights in Vermont.  Their willingness to raise their voices, share their stories to advocate for change, and organize to ensure immigrants can live with dignity and thrive strengthens our communities and is fundamental to our democracy,” said Trudy S. Rebert, staff attorney at the National Immigration Law Center. “Today’s settlement agreement sends the message that all of us have First Amendment rights and no one should be retaliated against for exercising those rights – our democracy depends upon it. 

“The actions of ICE against Migrant Justice and its members cannot be divorced from the federal government's, including ICE and other enforcement agencies’, disgraceful history of unlawfully targeting, surveilling, and disrupting grassroots movements for racial justice and civil and human rights. From COINTELPRO and the government's actions against leaders in the movement for Black liberation in the 60s and 70s, to its current attacks on Black Lives Matter advocates, immigrant leaders in the Sanctuary Movement, and advocates at the southern border, the federal government has demonstrated a pattern of retaliation against dissenters across movements. It is up to us to hold our government to account for this unlawful conduct. This lawsuit and settlement is one tool to do just that, and ICE is on notice that we will continue to fight for the rights of Migrant Justice, its members, and other civil and human rights defenders,” said Lupe Aguirre, a Bertha Justice Fellow at the Center for Constitutional Rights.

The 2018 lawsuit had also named the Vermont Department of Motor Vehicles as a defendant due to the state agency’s discriminatory practices of sharing immigrants’ information with ICE. In January, plaintiffs reached a separate settlement with the DMV, formalizing new regulations to restrict communication and information-sharing between the state department and federal immigration agencies. The settlement also prohibited the DMV from retaining copies of birth certificates, passports, and other sensitive information of applicants for Driver’s Privilege Cards and required the agency to retrain staff and hire an external auditor to monitor compliance with the agreement.

Today’s settlement brings the federal lawsuit to a close, just days before the presidential election. Said Migrant Justice spokesperson Thelma Gómez: “ICE’s abuses did not start under this administration and they won’t end next week, whoever wins the election. We have achieved something great today, and we must keep organizing to confront these abuses. Because it is only when we unite to defend our rights that we win justice.”

For more information, visit the Center for Constitutional Rights case page.