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January 14, 2021

Order Overturns a District Court Decision in the First Amendment case

BAKERSFIELD — In a key victory for immigrants’ rights and free speech, the U.S. Court of Appeals for the Ninth Circuit today overruled a lower court ruling that rejected the lawsuit of Jose Bello, a college student and activist who was arrested and jailed by the U.S. Immigration and Customs Enforcement (ICE) shortly after reciting a poem critical of the agency.

The appeals court said that the lawsuit, filed in 2019 by the American Civil Liberties Union Foundations of Southern California and Northern California against the federal government, was improperly rejected by a federal district court and could now continue.

The Bello case received national attention — free speech groups such as PEN America weighed in on his arrest and professional sports figures came forward to help pay his exorbitant bond. 

“In recent years, immigration officers have used their power to intimidate and retaliate against immigrant rights activists who speak out in defense of their civil, labor, and political rights,” said ACLU SoCal Staff Attorney Jordan Wells, who argued the case before the Ninth Circuit. “Today’s decision upholds the sacrosanct First Amendment right of all people — including immigrants — to criticize our government without official reprisal. We are gratified that Jose Bello’s case against this unlawful retaliation can now proceed.”

The lawsuit argued that Bello's arrest violated the First Amendment, charging that ICE agents have "specifically targeted activists who publicly criticize its immigration enforcement practices.” 

The Ninth Circuit overturned the district court order that was based on a 2019 Supreme Court  ruling involving individual law enforcement officers. The appeals court said that ruling does not apply in retaliation claims such as Bello’s against ICE.

Bello reacted to the Ninth Circuit victory with a poem, excerpted here:

“They Tried To Silence Me Through Incarceration; Leaving Me Frozen In Fear.
My Roots Are Real, Therefore I Must Stand Up For What's Right. 
Let's Continue To Educate Ourselves, It's Time To Unite 
So We Rise. 
We Cannot. We Must Not. And We Will Not Be Made Illegal In Our Own Homeland!"

In 2018,  Bello read his poem, "Dear America," before the Kern County Board of Supervisors. It protested actions by ICE, reading in part: 

"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, who was brought to the U.S. when he was three, was imprisoned at the Mesa Verde Detention Center on an ICE-imposed bond of $50,000, a huge amount given that Bello, was a student at Bakersfield College and a farm worker worker with an annual income of about $20,000. 

National Football League players Josh Norman and Demario Davis — who are members of the of the Players Coalition, a group of professional athletes working to improve social justice and racial equality — came forward to help pay the bail, along with the New York Immigrant Freedom Fund and National Bail Fund Network. 

A coalition of immigrants rights leaders have called upon the incoming Biden administration to protect immigrant rights defenders from retaliation, including by protecting immigrants' First Amendment rights through executive order, and exercising urgent prosecutorial discretion to end, redress, and prevent retaliation in individual cases.

The Immigrant Rights Clinic at NYU School of Law has documented over a thousand incidents of retaliation, surveillance, and intimidation through the Immigrant Rights Voices mapping project. The data demonstrates a pattern of federal agencies to silence immigrants through a range of enforcement tactics, from threats of detention and deportation to surveillance and raids. 

Read the U.S. Court of Appeals for the Ninth Circuit decision here:
Read the ACLU appeal filing here: