Read a Protest Poem, Get Arrested by ICE? Ninth Circuit to Hear Arguments in First Amendment Case of Retaliatory Removal

Repeated claims have been made that Immigration and Customs Enforcement is targeting immigrant activists for enforcement activities. See here, here, here.

Next Tuesday, Jordan Wells of the ACLU Southern California will be arguing a First Amendment case in the Ninth Circuit claiming that ICE retaliated against an immigrant activist.  A primary issue is the reach of the Supreme Court’s 2019 decision in Nieves v. Bartlett, which involved a retaliatory arrest claim. 

Here is how the ACLU framed the case in an announcement in June 2019:

“Farm worker, student, and activist Jose Bello read a poem he wrote, “Dear America,” before the Kern County Board of Supervisors in May. It protested actions by Immigration and Customs Enforcement (ICE) agents.

The poem read, in part:

`I speak for the victims that pay for this scam: Vietnamese, Jamaican, African, Cambodian, Mexican, Salvadoran, on and on, together we stand.

We demand our respect. We want our dignity back.

Our roots run deep in this country, now that’s a true fact.’

`I’m here to let you know, we want to feel safe — whether we’re Brown, Asian, or Black.

We don’t want your jobs. We don’t want your money.

We’re here to work hard, pay taxes, and study.’

Less than 36 hours after reading the poem, ICE agents came to Bello’s home in Bakersfield at 6:30 a.m. and arrested him. One of the agents told him, `We know who you are and what you’re about.’

Bello, 22, was imprisoned at the Mesa Verde Detention Center on an ICE-imposed bond of $50,000, a hugely unjust amount given that Bello, who is also a student at Bakersfield College, has an annual income of about $20,000.

The American Civil Liberties Union Foundation of Southern California has filed a petition for a writ of habeas corpus in United States District Court in San Francisco, arguing that Bello’s arrest violates the First Amendment, as ICE agents have repeatedly, `specifically targeted activists who publicly criticize its immigration enforcement practices.'”

Here is the Ninth Circuit briefing on the case.

Download BRF.9Cir.18 Opening Brief

Download BRF.9Cir.31 R’s Answering Brief

Download BRF.9CIR.36 Reply Brief

The Ninth Circuit judges who will hear the arguments are Chief Judge Sidney Thomas, Mary Schroeder, and Marsha Berzon.  The draw of judges, in my estimation, is a pretty good one for Jose Bello.

KJ