Lame-duck Biden judge greenlights student newspaper lawsuit against pro-Palestine deportations

A federal judge nominated by President Biden but only confirmed after the 2024 election has greenlit a lawsuit against his successor's administration, letting Stanford University's largest independent newspaper and anonymous noncitizen students challenge visa policies and practices that allegedly target certain noncitizens for pro-Palestine expression.

U.S. District Judge Noel Wise, whose nomination got hung up on her past writings on race and gender identity and squeaked through confirmation without support from then-Sen. Joe Manchin, I-W.V., said the F-1 visa holders John Doe and Jane Doe have a "credible, well-founded fear of immigration enforcement against themselves" and the Stanford Daily on behalf of its noncitizen student members.

She rejected the government's motion to dismiss for lack of legal standing, the only grounds raised by defendants Secretary of State Marco Rubio and Homeland Security Secretary Kristi Noem.

By "arresting, detaining, and deporting students with F-1 visas when those students voice opinions that express support or empathy for Palestinian people or are critical of Israel’s actions regarding Palestine or the conflict in Gaza," the feds compelled the Does to stop "publishing commentary online," change their social media practices and avoid clothing "that indicates a pro-Palestinian view," the Does alleged.

Noncitizen student members of the Stanford Daily with F-1 visas have also asked the newspaper to "take down their previously published articles about Israel and Palestine" and have stopped publishing new articles despite having "already expended considerable effort investigating and writing new articles" about the conflict.

They cited arrests and attempted deportations of students such as Columbia's Mahmoud Khalil and Mohsen Mahdawi MIT's Rümeysa Öztürk, and a surplus of government statements promising deportations for "terrorist sympathizers," those who promote "Hamas propaganda" and engage in other forms of protected speech.

The Does have "sufficiently alleged that their behavior falls into the crosshairs of the Government’s stated enforcement priorities" and it has "not disavowed plans to continue invoking the Revocation and Deportation Provisions" of the Immigration and Nationality Act, Wise wrote.

The newspaper "has sufficiently alleged that its mission has been frustrated by the Government’s threats of immigration enforcement," drawing fewer and less diverse opinion pieces and "on-the-record sources for articles" and "substantially reduced participation from noncitizen contributors" including some who quit entirely, she said.

Wise took note of the government's argument that the plaintiffs could only bring an "as-applied" challenge against the INA provisions that chill their speech, not a facial challenge to the provisions' constitutionality, but called it "ill-timed."

She'll have to determine whether either of the INA provisions infringe on undefined "protected speech" in all situations, not just as applied to their speech, Wise wrote.